Terms and Conditions

1. ORDERS.

   Unless otherwise stated on TOGA’s proposal, quote or invoice, prices are for Products only and do not include taxes, freight, duties, tariffs or any other charges or fees for additional services (collectively, “Additional Fees”). Unless otherwise stated on TOGA’s proposal, quote or invoice, Customer is responsible for any and all Additional Fees. Prices are subject to change due to manufacturers’ price increase, or quoting errors. Prices are not final until delivery of the Products to the carrier (defined below).

2. PRICES.

   Unless otherwise stated on TOGA’s proposal, quote or invoice, prices are for Products only and do not include taxes, freight, duties, tariffs or any other charges or fees for additional services (collectively, “Additional Fees”). Unless otherwise stated on TOGA’s proposal, quote or invoice, Customer is responsible for any and all Additional Fees. Prices are subject to change due to manufacturers’ price increase, or quoting errors. Prices are not final until delivery of the Products to the carrier (defined below).

3. TERMS OF PAYMENT.

   Payment is due as stated on TOGA’s invoice without offset or any deduction for withholding taxes or any other reason. On any past due invoice, TOGA may charge interest from the payment due date to the date of payment at eighteen percent (18%) percent per annum or the maximum amount allowed by applicable law, plus reasonable attorneys’ fees, and collection costs.

4. DELIVERY.

   Unless otherwise stated by TOGA in writing, all deliveries are FCA TOGA’s warehouse or, for drop shipments, FCA the manufacturer’s or distributor’s warehouse (INCOTERMS 2020). Delivery dates are estimates only. TOGA shall not be responsible or liable for any costs, losses or damages arising out of or related to: (i) any failure to deliver Products within the time prescribed therefor; (ii) delay in delivery; (iii) partial delivery; or (iv) early delivery. Customer shall accept Products notwithstanding delayed, partial or early delivery. Customer may not cancel any other Orders based on delayed delivery of any part of an Order.

5. TITLE.

   Title shall pass to Customer upon delivery of the Products to the carrier.

6. SOFTWARE.

   Software is the machine readable (object code) version of computer programs (“Software”). Customer’s use of Software and any related documentation shall be governed by the license agreement applicable to the Software. Software embedded in or bundled with hardware must be used solely with the hardware for which it was intended and may not be transferred separately.

7. WARRANTY.

   Customer acknowledges that TOGA is not the manufacturer of the Products. TOGA shall pass through to Customer any transferable Product warranties, indemnities, and remedies provided to TOGA by the manufacturer, including those for intellectual property infringement, if any, to the extent it is permitted to do so. If TOGA performs value-added work such as integration work, or programming, TOGA warrants such value-added work will conform to Customer’s written specifications accepted by TOGA for ninety (90) days after delivery by TOGA. Customer shall be deemed the manufacturer of such value-added Products. Customer’s sole remedies for breach of TOGA’s warranty for value-added Products are, at TOGA’s choice: (i) repair of the value-added Products; (ii) replacement of the value-added Products; (iii) re-performance of the value-added work; or (iv) refund of Customer’s purchase price for the value-added Products. TOGA makes no representation or warranty with respect to Software and will have no liability in connection therewith. Unless it is specifically stated in the Software’s applicable license agreement, SOFTWARE IS PROVIDED “AS IS” WITH NO ADDITIONAL WARRANTY.

   TOGA MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, SUCH AS WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. UNLESS WARRANTED AS DESCRIBED IN THIS SECTION, PRODUCTS ARE PROVIDED “AS IS”.

8. PRODUCT RETURN.

   Customer may return Products to TOGA only with a return material authorization (“RMA”) number issued by TOGA. An RMA shall be issued by TOGA subject to the following: (i) Returns for Visual Defect: TOGA Receipt of written notice of any damage to outer packaging, damage to Products, shortage of Products, or other discrepancy (“Visual Defect”) within three (3) business days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Products; (ii) Returns for Product Warranty: TOGA receipt of written notice stating the specific Product defect within the warranty period; (iii) the defect notified under (i) or (ii) was caused solely by TOGA or the original manufacturer; (iv) the defect notified under (i) or (ii) is not damage, shortage, or other discrepancy created by Customer, a carrier, a freight provider or any third party; (v) Customer must return the Products to TOGA in compliance with instructions in the RMA provided by TOGA; and (vi) TOGA’s assessment of returned Products confirms eligibility for return under this section. TOGA may return Products not eligible for return under this section to Customer on a freight collect basis, or hold such Products for Customer’s collection and account at Customer’s expense.

9. LIMITATION OF LIABILITY.

   In any action under or relating to this Agreement, whether based in contract, warranty, tort (including negligence) or any other legal theory, TOGA shall not be liable for any indirect, special, incidental, punitive or consequential damages, including loss of profits, loss of revenue, loss of data, loss of use, rework, repair, manufacturing expense, costs of product recall, injury to reputation or loss of customers even if TOGA has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any remedy in this Agreement. In no event shall TOGA’s liability arising out of or in connection with this Agreement exceed the total amount paid to TOGA for the specific Products at issue.

10. FORCES BEYOND TOGA’S CONTROL.

    TOGA will not be in breach of this Agreement and will not be liable for failure to fulfill its obligations under this Agreement, if any such failure or delay is due to or arising out of any legal theory of force majeure, an act of nature, act or omission of Customer, act of a governmental authority, including laws, regulations, orders or decrees, operational disruptions, man-made or natural disaster, epidemic, pandemic, shortage of labor, energy, fuel, materials or Products, strike, labor action, criminal act, war, terrorism, civil unrest, delay in delivery or transportation, inability to obtain labor, materials or Products through regular sources, communication or power failures, Act of God, or any cause beyond its reasonable control.

11. USE OF PRODUCTS.

    Customer shall comply with the manufacturer’s Product specifications. Products are not authorized for use in life support systems, human implantation, nuclear facilities or any other application where Product failure could lead to loss of life or property damage. If Customer uses or sells the Products for use in such applications or fails to comply with the manufacturer’s Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer’s sole risk. Customer shall indemnify, defend and hold TOGA harmless from any claims resulting from or arising out of: (i) TOGA’s compliance with Customer’s designs, specifications, or instructions; (ii) modification of any Product by a party other than TOGA; (iii) use of Products in combination with other products; (iv) use of Products not authorized as described above; or (v) use of Products and related technology in chemical, biological or nuclear weapons, rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) or unmanned air vehicles capable of delivering same, or in the development of any weapons of mass destruction.

12. GENERAL

    1. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of New York. Each party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of, under or in connection with this Agreement. THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT.
    2. If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law. The unenforceability or invalidity of any term or condition will not affect the remainder of the terms or conditions.
    3. Products, including Software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and user licenses, and Customer shall comply with such rights.
    4. The parties agree that electronic signatures may be used for all purposes under this Agreement and shall be legally valid, effective and enforceable for all purposes hereunder.
    5. Product information (for example, statements or advice (technical or otherwise) advertisement content, and information related to a Product’s specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by TOGA on an “AS IS” basis and does not form a part of the properties of the Product. TOGA makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION. TOGA recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. TOGA is not responsible for typographical or other errors or omissions in Product information. TOGA employees, representatives and/or agents have no authority to make any representations regarding Products other than those specified in this Agreement or a signed written amendment hereto. TOGA shall have no liability for any representation or information that is not a part of this Agreement.

SMS Terms of Use

1. DEFINITIONS.

   “Opting In,” “Opt In,” and “Opt-In” refer to requesting, joining, agreeing to, enrolling in, signing up for, acknowledging, responding to, or otherwise consenting to receive one or more text messages. “Text Message Service” includes any arrangement or situation in which we send one or more messages addressed to your mobile phone number, including text messages (such as SMS, MMS, or successor protocols or technologies).

2. CONSENTING TO TEXT MESSAGING. 

   By consenting to receive text messages from us, you agreed to these Text Messaging Terms and Conditions, as well as our  Sales Terms & Conditions  and  Privacy Policy  incorporated herein by reference.

3. E-SIGN DISCLOSURE. 

   By agreeing to receive text messages, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by replying STOP.

4. TOGA TECHNOLOGY TEXT MESSAGE SERVICE PRIVACY POLICY. 

   We respect your privacy. We only use information you provide through this service to transmit your mobile messages and respond to you. This includes, but isn’t limited to, sharing information with platform providers, phone companies, and other vendors who assist us in the delivery of mobile messages. Mobile information will not be shared with third parties/affiliates for marketing/promotional purposes. All the above categories exclude text messaging originator opt-in data and consent; this information will not be shared with any third parties. Nonetheless, we reserve the right always to disclose any information as necessary to satisfy any law, regulation or governmental request, to avoid liability, or to protect our rights or property. This Text Message Service Privacy Policy applies to your use of the Text Message Service and isn’t intended to modify our general Privacy Policy, incorporated by reference above, which may govern the relationship between you and us in other contexts.

5. COSTS OF TEXT MESSAGES.

   We do not charge you for the messages you send and receive via this text message service. But message and data rates may apply, so depending on your plan with your wireless or other applicable provider, you may be charged by your carrier or other applicable provider.

6. FREQUENCY OF TEXT MESSAGES.

   This Text Messaging Service is for conversational person-to-person communication between you and our employees. We may send you an initial message providing details about the service. After that, the number of text messages you receive will vary depending on how you use our services and whether you take steps to generate more text messages from us (such as by sending a HELP request).

7. OPTING OUT OF TEXT MESSAGES.

   If you no longer want to receive text messages, you may reply to any text message with STOP, QUIT, END, REVOKE, OPT OUT, CANCEL, or UNSUBSCRIBE. As a person-to-person communication service, opt-out requests are specific to each conversation between you and one of our employees and their associated phone number. After unsubscribing, we may send you confirmation of your opt-out via text message.

8. CONTACT US.

   For support, please call us at (212) 736-0111 or contact us https://www.togatech.com/contact.