Terms of service

The following are the Terms and Conditions for the Supply of Goods of Nodor International Inc. (“Nodor”), whose address is 1525 Capital Drive, Suite 103, Carrollton, Texas 75006. Nodor concludes the Contract for the sale of Goods only subject to these Conditions, and the Customer seeking to be supplied with Goods by Nodor agrees that these Conditions shall govern the relations between the Customer and Nodor.

The Customer’s attention is drawn in particular to the provisions of Section 9.

1. Interpretation

1.1 Definitions: 

1.2 Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its successors and permitted assigns.

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

(e) A reference to writing or written includes emails and excludes fax.

2. Basis of contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. Without limiting the foregoing, these Conditions prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its Order or such terms. Fulfillment of Customer’s Order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Conditions.

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.

2.3 The Order shall only be deemed to be accepted when Nodor issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.5 Any samples, drawings, descriptive matter, or advertising produced by Nodor and any descriptions or illustrations contained in Nodor’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6 A quotation for the Goods given by Nodor shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.

3. Goods

3.1 The Goods are as described in Nodor’s catalogue as modified by any applicable Specification or as described in writing between the parties.

3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Nodor against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Nodor in connection with any claim made against Nodor for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Nodor’s use of the Specification. This Section 3.2 shall survive termination of the Contract.

3.3 Nodor reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and Nodor shall notify the Customer in any such event.

4. Delivery

4.1 The Goods shall be either:

(a) collected by the Customer from Nodor’s premises at 1525 Capital Drive, Suite 103, Carrollton, Texas 75006 or such other location as may be advised by Nodor prior to delivery (“Collection Location”) within 14 Business Days of Nodor notifying the Customer that the Goods are ready; or

(b) delivered by Nodor to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after Nodor notifies the Customer that the Goods are ready, 

as set out in the Order.

4.2 Delivery is completed:

(a) where the Goods are collected by the Customer, on the completion of loading of the Goods at the Collection Location; or

(b) where the Goods are delivered by Nodor, on the completion of unloading of the Goods at the Delivery Location.

4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Nodor shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Nodor with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.4 If Nodor fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Nodor shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Nodor with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 The Customer must notify Nodor in the event of any Goods missing in a delivery as soon as possible and no less than seven (7) Business Days after the expected delivery date.

4.6 If the Customer fails to collect or accept delivery of the Goods within 10 Business Days of Nodor notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Nodor’s failure to comply with its obligations under the Contract in respect of the Goods:

(a) Collection or delivery, as applicable, of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Nodor notified the Customer that the Goods were ready; and

(b) Nodor shall store the Goods until actual collection or delivery takes place and charge the Customer for all related costs and expenses (including insurance).

4.7 If 10 Business Days after the day on which Nodor notified the Customer that the Goods were ready for collection or delivery the Customer has not collected or accepted actual delivery of them, Nodor may resell or otherwise dispose of part or all of the Goods and charge the Customer for any shortfall below the price of the Goods.

4.8 If Nodor delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, Nodor shall make a pro rata adjustment to the invoice for the Goods.

4.9 Nodor may deliver the Goods by installments, which shall be invoiced and paid for separately. Each installment shall constitute a separate contract. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.

4.10 Where delivery is made outside of the United States of America, the Customer is responsible for obtaining, at its own cost, such import licenses and other consents in relation to the Goods as required from time to time and, if required by Nodor, the Customer shall make those licenses and consents available to Nodor prior to the relevant shipment.

5. Quality

5.1 Nodor warrants that on delivery the Goods shall:

(a) conform with their description and any applicable Specification;

(b) be free from material defects in design, material and workmanship; 

(c) be merchantable (within the meaning of Section 2.314(b) of the Uniform Commercial Code of the State of Texas); and

(d) be fit for any purpose held out by Nodor.

5.2 Subject to Section 5.3, if:

(a) the Customer gives notice in writing to Nodor within 7 days of discovery that some or all of the Goods do not comply with the warranty set out in Section 5.1;

(b) Nodor is given a reasonable opportunity to examine such Goods; and

(c) the Customer (if asked to do so by Nodor) returns such Goods to Nodor’s place of business at the Customer’s cost,

Nodor shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3 Nodor shall not be liable for the Goods’ failure to comply with the warranty set out in Section 5.1 in any of the following events:

(a) the Customer makes any further use of such Goods after giving notice in accordance with Section 5.2;

(b) the defect arises because the Customer failed to follow Nodor’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c) the defect arises as a result of Nodor following any drawing, design or specification supplied by the Customer;

(d) the Customer alters or repairs such Goods without the written consent of Nodor;

(e) the defect arises as a result of normal wear and tear, willful damage, negligence, or abnormal storage or working conditions; or

(f) the Goods differ from their description and any applicable Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.4 Except as provided in this Section 5, Nodor shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Section 5.1.

5.5 These Conditions shall apply to any repaired or replacement Goods supplied by Nodor.

5.6 EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 5.1, NODOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) WARRANTY OF TITLE, OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

6. Title and risk

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until the earlier of:

(a) Nodor receives payment in full (in cash or cleared funds) for the Goods, and any other goods that Nodor has supplied to the Customer, in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and

(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in Section 6.4.

6.3 Until title to the Goods has passed to the Customer, the Customer shall: 

(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Nodor’s property; 

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; 

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify Nodor immediately if it becomes subject to any of the events listed in Section 8.1(b) to Section 8.1(d); and

(e) give Nodor such information as Nodor may require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Customer.

6.4 Subject to Section 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Nodor receives payment for the Goods. However, if the Customer resells the Goods before that time:

(a) it does so as principal and not as Nodor’s agent; and

(b) title to the Goods shall pass from Nodor to the Customer immediately before the time at which resale by the Customer occurs.

6.5 At any time before title to the Goods passes to the Customer, Nodor may at any time for any reason:

(a) by notice in writing, terminate the Customer’s right under Section 6.4 to resell the Goods or use them in the ordinary course of its business; and

(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

(c) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. Price and payment

7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Nodor's published price list in force as at the date of delivery.

7.2 Nodor may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a) any factor beyond Nodor's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labor, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or 

(c) any delay caused by any instructions of the Customer or failure of the Customer to give Nodor adequate or accurate information or instructions. 

7.3 The price of the Goods: 

(a) excludes amounts in respect of sales tax, which the Customer shall additionally be liable to pay to Nodor at the prevailing rate, subject to the receipt of a valid resale certificate; and

(b) excludes the costs and charges of packaging, insurance and transport of the Goods, including any import, customs or excise duties, which shall be invoiced to the Customer.

7.4 Nodor may invoice the Customer for the Goods on or at any time after the completion of delivery. Payment shall be made in United States of America dollars ($), unless otherwise agreed by Nodor in writing in advance. In the event that Nodor accepts payment in an alternative currency, the Customer shall bear the cost of any currency fluctuations.

7.5 The Customer shall pay each invoice in full and in cleared funds within 20 Business Days of the date of the invoice. Payment shall be made to the bank account provided in writing by Nodor. Time for payment shall be of the essence of the Contract.

7.6 All payments shall be made in United States of America dollars ($) unless agreed otherwise in writing.

7.7 If the Customer fails to make a payment due to Nodor under the Contract by the due date for payment, then, without limiting Nodor’s remedies under Section 8, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this Section 7.7 will accrue each day at the lower of 18% per year or the maximum rate permitted by law.

7.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding of tax as required by law). Nodor may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Nodor to the Customer.

8. Termination 

8.1 Without limiting its other rights or remedies, Nodor may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a material breach of any term of the Contract and (if such a breach is capable of remedy) fails to remedy that breach within 7 days of that party being notified in writing to do so; 

(b) the Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; 

(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

8.2 Without limiting its other rights or remedies, Nodor may suspend provision of the Goods under the Contract or any other contract between the Customer and Nodor if the Customer becomes subject to any of the events listed in Section 8.1(a) to Section 8.1(d), or Nodor reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

8.3 Without limiting its other rights or remedies, Nodor may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

8.4 On termination of the Contract for any reason, the Customer shall immediately pay to Nodor all of Nodor's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Nodor shall submit an invoice, which shall be payable by the Customer immediately on receipt.

8.5 Termination or expiration of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiration, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination or expiration.

8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiration of the Contract shall remain in full force and effect.

9. Limitation of liability

9.1 IN NO EVENT SHALL NODOR BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT NODOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

9.2 IN NO EVENT SHALL NODOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO NODOR FOR THE GOODS SOLD HEREUNDER.

9.3 The limitations of liability set forth in this Section 9 shall not apply to (a) liability resulting from Nodor’s gross negligence or willful misconduct or (b) death or bodily injury resulting from Seller’s negligent acts or omissions.

9.4 This Section 9 shall survive the expiration or termination of the Contract.

10. Force majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations (except for any obligations of Customer to make payments to Nodor hereunder) if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the Contract by giving 30 days’ written notice to the affected party.

11. Intellectual property rights

11.1 The Customer acknowledges that:

(a) the Intellectual Property Rights in the Goods are the property of Nodor (or Nodor’s licensor);

(b) nothing in this Contract shall be construed as conferring any license or granting any rights in favor of the Customer in relation to the Intellectual Property Rights. Nodor asserts its full rights to control the use of its trade marks within the United States of America, and the Customer shall assist Nodor as required in preventing parallel importers from diluting Nodor’s rights; and

(c) any reputation in any trade marks affixed or applied to the Goods shall accrue to the sole benefit of Nodor or any other owner of the trade marks from time to time.

11.2 The Customer shall not repackage the Goods and/or remove any copyright notices, confidential or proprietary legends or identification from the Goods. 

11.3 The Customer shall not use or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which Nodor owns or claims rights in anywhere in the world.

11.4 If at any time it is alleged that the Goods infringe the rights of any third party or if, in Nodor's reasonable opinion, such an allegation is likely to be made, Nodor may at its option and its own cost: 

(a) modify or replace the Goods in order to avoid the infringement; 

(b) procure for the Customer the right to continue using the Goods; or 

(c) repurchase the Goods at the price paid by the Customer, less depreciation at the rate Nodor applies to its own equipment.

11.5 The Customer shall promptly and fully notify Nodor of:

(a) any actual, threatened or suspected infringement of any Intellectual Property Rights which comes to the Customer's notice; and

(b) any claim by any third party that comes to the Customer's notice that the sale or advertisement of the Goods infringes the rights of any person.

11.6 The Customer agrees (at Nodor's request and expense) to do all such things as may be reasonably required to assist Nodor in taking or resisting any proceedings in relation to any infringement or claim referred to in Section 11.5.

12. General

12.1 Assignment and other dealings.

(a) Nodor may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Nodor. Any purported assignment, transfer, mortgage, charge, subcontracting, delegation, declaration or dealing in violation of this Section 12.1(b) shall be null and void.

12.2 Entire agreement.

(a) The Contract constitutes the entire agreement between the parties with respect to its subject matter.

(b) Each party acknowledges that in entering into the Contract it does not rely on, and hereby disclaims reliance upon, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. 

12.3 Amendment and Modification. This Contract may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto.

12.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. 

12.5 Severance. If any provision of the Contract or part thereof is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity, legality and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this Section 12.5, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

12.6 Notices.

(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class mail or other next Business Day delivery service at the address as set out in the Order or as notified from one party to another from time to time; or

(ii) sent by email to the email addresses as set out in the Order, or as notified from one party to another from time to time. 

(b) A notice shall be deemed to have been received: 

(i) if delivered by hand, at the time the notice is left at the applicable address; 

(ii) if sent by pre-paid first-class mail or other next Business Day delivery service, at 9.00 am on the second Business Day after posting;

(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

(c) This Section does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

12.7 No third-party beneficiaries. The Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Contract.

12.8 Governing law. The Contract and all related documents, and all matters arising out of or relating to the Contract, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

12.9 Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in any United States federal court or state court located in the state of Texas in the City of Dallas and County of Dallas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.