Online Terms of Sale
ONLINE TERMS OF SALE
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU (THE BUYER) AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THESE TERMS, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (i) DO NOT AGREE TO THESE TERMS, (ii) ARE NOT THE OLDER OF (A) AT LEAST 18 YEARS OF AGE OR (B) LEGAL AGE TO FORM A BINDING CONTRACT WITH LINKA TECHNOLIGIES, LLC, OR (iii) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, PRODUCTS OR SERVICES BY APPLICABLE LAW.
These terms and conditions (this "Terms") apply to the purchase and sale of products and services through LINKA Fleets (the "Site"). These Terms are subject to change by Linka Technologies, LLC (referred to as "us", "we", or "our" as the context may require) without prior written notice at any time, in our sole discretion. Any changes to these Terms will be in effect as of the "Last Updated Date" referenced on the Site. You (the Buyer) should review these Terms prior to purchasing any product or services that are available through this Site. Your continued use of this Site after the "Last Updated Date" will constitute your acceptance of and agreement to such changes.
We offer a desktop fleet-management desktop application (desktop app) to our enterprise customers. You must also agree and accept our enterprise license agreement (ELA) to use the desktop app.
We also offer a mobile application (mobile app) ([LINKA GO] to your end users that is available for download and personal end use on certain mobile devices. Your user must accept our End User License Agreement (EULA) before using the mobile app.
- Sale of Products. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
- (a) The Products will be delivered within a reasonable time after you place your order, subject to availability of finished Products. LINKA shall not be liable for any delays, loss or damage in transit.
- (b) LINKA shall deliver the Products to Buyer at your delivery address provided in your order form using the applicable shipping option on the individual product page.
- (c) Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments. Buyer shall be solely responsible for the cost of shipping.
- (d) If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to LINKA's notice that the Products are available at the Delivery Point, or if LINKA is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) LINKA, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses including, without limitation, storage and insurance.
3. Non-Delivery. The quantity of any installment of Products as recorded by LINKA on dispatch from LINKA's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. LINKA shall not be liable for any non-delivery of Products (even if caused by LINKA's negligence) unless Buyer gives written notice to LINKA of the non-delivery within 7 days of the date when the Products would in the ordinary course of events have been received. Any liability of LINKA for non-delivery of the Products shall be limited to delivering the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
4. Quantity. If LINKA delivers to Buyer a quantity of Products of up to 20% more or less than the quantity set forth in the order form, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products the price set forth in the order form adjusted pro-rata.
5. Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to LINKA a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
6. Inspection and Rejection of Nonconforming Products.
- (a) Buyer shall inspect the Products within 7 days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Products unless it notifies LINKA in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by LINKA. "Nonconforming Products" means only the following: (i) product delivered is different than identified in the order form; or (ii) the product's label or packaging incorrectly identifies its contents.
- (b) If Buyer timely notifies LINKA of any Nonconforming Products, LINKA shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to LINKA's facility. If LINKA exercises its option to replace Nonconforming Products, LINKA shall, after receiving Buyer's shipment of Nonconforming Products, ship to Buyer, at Buyer's expense and risk of loss, the replaced Products to the Delivery Point.
- (c) Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer's exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 6(b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under these Terms to LINKA.
7. Price. Buyer shall purchase the Products from LINKA at the prices (the "Prices") set forth in online order form. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, LINKA's income, revenues, gross receipts, personnel or real or personal property or other assets.
8. Payment. Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept all major credit cards and bank transfers for all purchases. For bank transfers, you must pay all associated bank transfer fees. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.
9. No Setoff. Buyer shall not, and acknowledges that it will have no right, under these Terms, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to LINKA or any of its affiliates, whether under these Terms or otherwise, against any other amount owed (or to become due and owing) to it by LINKA or its affiliates, whether relating to LINKA's or its affiliates' breach or non-performance of these Terms or any other agreement between Buyer or any of its affiliates, and LINKA or any of its affiliates, or otherwise.
- (a) LINKA warrants to Buyer that for a period of one (1) year from the date of delivery of the Products ("Warranty Period"), such Products will materially conform to LINKA's published specifications and applicable laws and regulations in effect on the date of purchase, will be free from material defects in material and workmanship, will be merchantable, and will be fit for their intended purpose.
- (c) Products manufactured by a third party ("Third-Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third-Party Products are not covered by the warranty in Section 10(a). For the avoidance of doubt, LINKA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, 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.
- (d) LINKA shall not be liable for a breach of the warranty set forth in Section 10(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to LINKA within 7 days of the time when Buyer discovers or ought to have discovered the defect; (ii) LINKA is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by LINKA) returns such Products to LINKA's place of business at Buyer’s cost and risk for the examination to take place there; and (iii) LINKA reasonably verifies Buyer's claim that the Products are defective.
- (e) LINKA shall not be liable for a breach of the warranty set forth in Section 10(a) if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow LINKA's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Buyer alters or repairs such Products without the prior written consent of LINKA.
- (f) Subject to Section 10(d) and Section 10(e) above, with respect to any such Products during the Warranty Period, LINKA shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro-rata contract rate provided that, if LINKA so requests, Buyer shall, at Buyer's expense and risk, return such Products to LINKA.
- (g) RMA Process. At its Option, Buyer may implement the following return process in addition to or in lieu of the warranty service provided by LINKA. If Buyer determines any Product or component has not met the warranty terms set forth in these Terms: (1) Buyer shall contact LINKA and describe the problem. If LINKA cannot resolve the issue over the phone or in person, LINKA shall provide a Return Material Authorization (RMA) number and shipping address, method and instructions for the Product; and (2) Buyer shall ship, at Buyer’s expense freight and insurance prepaid, the Product to the address designated by LINKA along with the RMA number. Risk of loss shall be on Buyer from time of shipment.
- (h) Within five (5) days after Buyer informs LINKA that any such Products do not conform to the warranties of this Section or within five (5) days after LINKA receives the returned Product, LINKA may, at its own expense, ship a replacement of the nonconforming Product or part with a unit that is in compliance. Such replacement will be considered new or refurbished Product (or a new part, as applicable) and the Warranty Period shall be reset to twelve (12) months. If LINKA fails to do so within that period, Buyer may, at its option, (i) extend the correction period or (ii) obtain a partial refund of fees paid to LINKA for the unit and reimbursement for any other Product and parts that Buyer is unable to use as a consequence of the nonconformity. LINKA shall be responsible for shipping for replacements, and shall replace any Product and parts returned for replacement with new or refurbished units free of charge.
- (i) Product Recall. If LINKA or any governmental authority determines that a recall campaign is necessary for safety reasons, Client will have the right to implement such recall campaign and return such Product to LINKA at its (or its customers’) sole cost and risk. Then, LINKA shall at its sole cost and risk promptly replace any returned Products or components and provide or ship such replacement Products to Client or Client’s designee. The foregoing will apply only if such product Warranty Period has not expired. Where applicable, LINKA shall pay all reasonable expenses associated with determining whether a recall campaign is necessary.
12. Compliance with Law. Buyer is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.
13. Indemnification. Buyer shall indemnify, defend and hold harmless LINKA and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under these Terms and the cost of pursuing any insurance providers, incurred by Indemnified Party, arising out of or resulting from any claim of a third party or LINKA arising out of or occurring in connection with the Products purchased from LINKA or Buyer's negligence, willful misconduct or breach of these Terms. Buyer shall not enter into any settlement without LINKA's or Indemnified Party's prior written consent.
14. Confidential Information. All non-public, confidential or proprietary information of LINKA, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by LINKA to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized by LINKA in writing. Upon LINKA's request, Buyer shall promptly return all documents and other materials received from LINKA. LINKA shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
15. Entire Agreement. This Terms, including and together with any related order form, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
16. Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify these Terms to effectuate the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
17. Amendments. No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party.
18. Waiver. No waiver by any party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
19. Cumulative Remedies. All rights and remedies provided in these Terms are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Buyer's rights under Sections 3, 6 and 10 are Buyer's exclusive remedies for the events specified therein.
20. Assignment. Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under these Terms without the prior written consent of LINKA. Any purported assignment, transfer, delegation or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation or subcontract shall relieve Buyer of any of its obligations hereunder. LINKA may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under these Terms without Buyer's prior written consent.
21. Successors and Assigns. These Terms is binding on and inures to the benefit of the Parties to these Terms and their respective permitted successors and permitted assigns.
22. No Third-Party Beneficiaries. These Terms benefits solely the Parties to these Terms and their respective permitted successors and assigns and nothing in these Terms, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
23. Choice of Law. These Terms, including the order form, and all matters arising out of or relating to these Terms, are governed by, and construed in accordance with, the laws of the State of California, United States of America, without regard 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 California.
24. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to these Terms, including all orders, and all contemplated transactions, in any forum other than federal or state courts located in Alameda County, California, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such courts. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
25. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS, INCLUDING ANY ORDER FORMS ATTACHED TO THESE TERMS, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS, INCLUDING ANY ORDER FORMS ATTACHED TO THESE TERMS, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
26. Force Majeure.
- (a) Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations of the Buyer to make payments to LINKA), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted Party ("Impacted Party"), including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, pandemic or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party.
- (b) The Impacted Party shall give notice to the other Party, within 10 days of the Force Majeure Event, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 60 consecutive days following written notice given by it under this Section, the other Party may thereafter terminate these Terms upon 10 days' written notice.
27. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from these Terms.