ALL SALES ARE EXPRESSLY CONDITIONED UPON BUYER’S STRICT ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH HEREIN
The ordering and/or purchase of any and all products (“Goods”) from Labels R Us, Inc. (“Seller”) is subject to and conditioned upon the terms and conditions set forth in this document (“Terms” or “Agreement”). Seller’s acceptance of any purchase order, purchase request and/or sales of Goods to you (hereinafter referred to as “Buyer” or “you”) shall be subject to the Terms herein. The submittal of a purchase order and/or acceptance of Goods shall constitute Buyer’s acceptance of and agreement to comply with all of the Terms as set forth herein. Buyer and Seller may each be referred to herein as a “Party” or together as the “Parties.”
Payment Terms. The price for the purchase of Seller’s products (hereinafter “Goods”) is as set forth on the face of Seller’s Order Acknowledgment or Sales Invoice. Payment of the full purchase price is due pursuant to the payment terms set forth on Seller’s Order Acknowledgment or Invoice. Risk of loss shall pass upon Seller’s tender of Goods to the Buyer. In addition to the purchase price of the Goods, Buyer shall pay any and all shipping, transportation, freight, and delivery costs incurred by Seller. Invoices not paid when due shall be subject to a late charge equal to 1 1/2% of the amount of the invoice per month or the highest lawful rate which may be charged to Buyer, whichever is higher. Net payment terms and discount periods shall be calculated from the Invoice date (as opposed to the actual delivery date and/or the date Buyer actually receives Seller’s invoice). Buyer’s payment shall be deemed made upon Seller’s receipt of such funds. In the event Buyer does not strictly abide by the payment terms set forth herein, then Seller shall, as a nonexclusive remedy, and in its sole discretion, have the right to either place a hold on all remaining Buyer orders or cancel all remaining Buyer orders. Seller’s subsequent acceptance of payment shall not be deemed a waiver of any kind. Buyer agrees that Seller retains the right to change and/or increase pricing for Goods upon written or oral notice to the Buyer. The posting of any price change on Seller’s website shall constitute notice to Buyer. Such pricing changes shall apply to all orders that have not yet been delivered (as of the time of notice) to Buyer or Buyer’s designated agent.
Financing. In the event Seller, in its sole discretion, approves of Buyer’s purchase of Goods pursuant to a credit or financing transaction, Buyer hereby represents and agrees that it shall execute the necessary financing documents, including but not limited to a promissory note and security agreement which secures the purchase price of the Goods with all tangible and intangible assets owned by Buyer.
No Offset. Payment of the purchase price and all sums due to Seller shall be made in full pursuant to the terms herein without any deduction or credit. Any deduction, credit, discount or rebate which is due to Buyer shall be remitted to Buyer by check within a reasonable time after Seller’s receipt of the full purchase price. Buyer’s failure to pay the full amount when due, without any deduction, offset or credit, shall constitute a material breach of this Agreement.
Expenses. The sales prices do not include any amount for duties; or for present or future sales, excise or other similar tax which may be applicable to the sale of the Goods or the use thereof by Buyer. Buyer agrees to pay all such taxes and duties, including interest and penalties thereon. If Seller is required to pay such taxes to any taxing authority, Buyer will promptly reimburse Seller for the amount paid and such payments shall constitute secured payments for the purposes of this Agreement.
Order Acceptance. Each part of an order that Buyer submits to Seller constitutes an offer to purchase Goods. When Buyer places an order through the Website or written communications with Seller, Buyer shall receive an Order Acknowledgment (hereafter “OA”) confirming receipt and acceptance of order placed. An order will be accepted by Seller, through the issuance of an OA, in its sole and absolute discretion and in no event is Seller obligated to accept any order.
Delivery. Seller may but shall not be obligated to notify Buyer of the approximate delivery date(s) of the Goods ordered, but Seller does not guarantee nor warrant a particular day of delivery, and Buyer shall not rely on a specific delivery date in purchasing the Goods that are the subject of this Agreement. Delivery is contingent upon adequate prior financial arrangements, if applicable, and upon Buyer’s compliance with all terms of this Agreement, including payment terms and credit limits. Seller shall not be liable for any losses, damages, claims or causes of action arising from shipping delays. Buyer understands and acknowledges that shipping delays may arise from (or be related to): fire, explosion, flood, storm, acts of God, governmental acts, orders or regulations, hostilities, civil disturbance, raw material shortages, strikes, labor difficulties, machinery breakdown, transportation contingencies, difficulty in obtaining supplies or shipping facilities, delay of carriers, or Seller’s decision to reallocate resources and/or manufacturing capacity. The foregoing list is illustrative and is not exclusive. In the event of non-delivery, where such non-delivery is caused solely by the fault of Seller, Buyer shall be entitled to a refund of only those monies actually paid for the undelivered Goods. Delayed shipments may not be canceled and/or deemed “undelivered” unless and until such delay exceeds 30 days. In the event Buyer receives a refund for non-delivered Goods and subsequently receives such Goods, Buyer shall return such Goods immediately to Seller.
Preservation of Goods. Until such time as Seller’s security interest in the Goods is terminated; Buyer shall use any and all means necessary to ensure that Goods sold to Buyer pursuant to this Agreement are preserved, safeguarded, and kept in their original condition free of defects or contamination. The handling and storage of the Goods shall be in compliance with any instructions as may be provided by Seller and/or conform to applicable industry practices. Without limitation of Buyer’s obligation to handle, store and preserve the Goods using best practices, handling and storage conditions, at minimum, shall conform to the following: Goods shall not be stored, handled or exposed to a temperature in excess of 72 degrees Fahrenheit, relative humidity shall not exceed 50%, and Goods should not be exposed to excessive sunlight, liquids, chemicals, compounds or other substances which could alter the composition, look or integrity of the Goods.
Non-Conforming or Damaged Goods. Buyer agrees to immediately inspect all incoming Goods upon delivery. In the event the Goods delivered by Seller to Buyer are damaged in any way, non-conforming, and/or defective (“Non-Conforming Goods”), if the nature of the Non-Conforming Goods is due to an error in quantity shipped, damage of Goods during transit or the shipment of a wrong item caused by Seller’s fault or neglect, then Buyer shall give written notice to Seller detailing the reason why such Goods constitute Non-Conforming Goods within ten (10) days of delivery of the Goods to Buyer’s premises or property. If the nature of the Non-Conforming Goods is due to an error or omission in the manufacturing of the Goods or other quality defects in the Goods caused during the manufacturing process, then Buyer shall give written notice to Seller detailing the reason why such Goods constitute Non-Conforming Goods within ninety (90) days of delivery of the Goods to Buyer’s premises or property. In the event such notice is not given; Buyer hereby assumes full responsibility for any Non-Conforming Goods. Buyer agrees that Buyer’s failure to provide written notice to Seller within said time period shall constitute Buyer’s unequivocal acceptance of the Goods and agreement and acknowledgment that there is no nonconformity, damage, defect, error, issue or problem with the Goods. In the event Buyer gives Seller notice within the specified applicable time as set forth above of any Non-Conforming Goods, Buyer shall promptly provide to Seller all evidence, including photos, a sample of the Non-Conforming Goods, and any other information or items requested by Seller in order to enable Seller to evaluate and confirm whether the Goods constitute Non-Conforming Goods. Upon confirmation by Seller in its reasonable discretion that the Goods are Non-Conforming Goods, Seller shall at Seller’s sole discretion and option either repair the Goods, replace the Goods or refund the purchase price as to the Goods, or portions thereof, which are deemed to be Non-Conforming Goods. The foregoing shall constitute Buyer’s sole and exclusive remedy for any Non-Conforming Goods. Seller’s obligation for any Non-Conforming Goods shall be limited to the correction, replacement or cost of the Goods, and in no event shall Seller’s obligation or liability extend beyond Seller’s obligation set forth herein. Seller shall not be obligated or liable, without limitation, for any cost, expense, penalty or damage arising out of or related to Non-Conforming Goods including but not limited to the expense or cost to recall Goods to which Non-Conforming Goods are affixed, the cost to either rework or dispose of Buyer’s product or any other expense or cost necessary to resolve the non-conformity. For purposes of clarification, in no event shall Seller be obligated to perform the obligations set forth herein to the extent that the Non-Conforming Goods are the result of (a) Buyer’s breach of any representation, warranty, covenant or other provision of this Agreement, (b) the negligent acts or omissions of Buyer or (c) mishandling, misuse, damage from excessive temperature or exposure to weather conditions, physical or chemical abuse, or improper storage occurring while the Goods were within Buyer’s ownership or control. In the event that the Parties are unable to agree on whether the Goods, or portion thereof, constitutes Non-Conforming Goods, the Parties will engage in the dispute resolution process set forth in this Agreement.
Return of Goods. Seller is in the business of manufacturing custom goods made to the specifications of Buyer; and such goods are generally not saleable to any party except Buyer. Unless Seller shall have authorized or permitted, in writing, the return of any Goods in its sole and absolute discretion; Seller shall not be obligated to accept any returns, exchanges or provide any credits for any Goods or part thereof. In the event Seller allows the return of any Goods, or portion thereof, purchased pursuant to this Agreement, Buyer shall pay a restocking charge equal to forty percent (40%) of the purchase price and the cost of shipping for the returned Goods.
Ownership of Buyer’s Content. Buyer will retain ownership of all proprietary materials submitted by Buyer, including videos, images, artistic designs and layouts, photographs, text, and other materials (collectively “Buyer’s Content”). Buyer agrees to grant Seller with worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license to use, reproduce, distribute, create derivative works of and publicly display such Buyer’s Content solely in connection with the production or provision of any product or service Buyer requests or to show Buyer how the Buyer’s Content will appear in Seller’s products or services. Any template, layout, or arrangement used by Seller to organize Buyer’s Content will remain proprietary to Seller.
Retention of Tooling Materials. As to any electronic art files and/or other information and materials which Buyer may provide for the manufacture of the Goods, and the printing plates, cutting dies and other tools which are created for the manufacturing process (“Required Materials”), Seller shall assert commercially reasonable efforts to maintain such Required Materials in storage for so long as Goods that use Required Materials are being purchased from Seller. If Goods that use Required Materials have not been purchased from Seller within a twenty-four (24) month period or longer, Seller reserves the right in its sole and absolute discretion to delete, purge, destroy, or otherwise dispose of such Required Materials at Seller’s cost. If Buyer reorders Goods for which Required Materials have been disposed of under this provision, Buyer shall be responsible for repurchasing or paying the expense for the Required Materials.
Rights to Buyer’s Content. Buyer represents and warrants that Buyer owns or otherwise possesses all necessary rights with respect to Buyer’s Content, and that Buyer’s Content does not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trademark, trade secret right or other intellectual property or other property right of any third party, and that the Buyer’s Content are not unlawful, fraudulent, threatening, abusive, hateful, libelous, defamatory, obscene, confusingly similar to brands or branded products sold by others or otherwise objectionable.
Image and Likeness. Buyer consents to the use of their likeness, and Buyer has obtained the written consent, release, and/or permission of every identifiable individual who appears in Buyer’s Content to use such individual’s likeness for purposes of using and otherwise exploiting the Buyer’s Content in the manner contemplated in this Agreement, or, if any such identifiable individual is under the age of eighteen (18), Buyer has obtained such written consent, release, and/or permission from such individual’s parent or guardian (and Buyer agrees to provide to Seller a copy of any such consents, release, and/or permissions upon Seller’s request).
Inappropriate Content. Buyer agrees that Seller may (but is not obligated to) filter any Buyer’s Content (including, without limitation, deleting or replacing expletives or other harmful or offensive language), refuse to use any Buyer’s Content (including, without limitation, suspending processing and shipping of any order relating to any Buyer’s Content) and/or disclose any Buyer’s Content and the circumstances surrounding the use thereof, to any third party in order to provide the applicable products or services, to enforce the terms of this Agreement or to comply with legal obligations or governmental requests.
Accuracy of Buyer’s Content. Buyer acknowledges and agrees that Buyer shall be solely responsible for all information set forth in Buyer’s Content provided to Seller, including but not limited to any errors in Buyer’s Content. Seller shall have no liability or responsibility, in any manner, to verify or ensure that the information set forth in Buyer’s Content, whether such error is patent or otherwise, is accurate and in compliance with applicable federal, state and local laws and regulations. Buyer shall be solely responsible for ensuring the compliance of Buyer’s Content with all applicable laws, rules and regulations.
2.11 California Prop 65 Compliance. If Buyer directly or indirectly sells Goods in California or directly or indirectly distributes its Goods for sale into California, Buyer shall comply with all applicable provisions of California’s Proposition 65 and its implementing regulations, including but not limited to 27 Cal. Code Regs. Sections 25601-25607, and 25607.10-25607.11 (collectively “Prop 65”). In the event Buyer’s Content and/or Goods are non-compliant with Prop 65 requirements as a result of the Buyer’s Content provided by Buyer: (i) Buyer shall pay for all Goods ordered regardless of whether the Goods, or any portion thereof, are not useable by Buyer, and (ii) Buyer shall not place any non-compliant Goods into commerce upon acquiring any knowledge or notice of its non-compliance.
2.12 Prop 65 Warning. Buyer acknowledges that some of the materials or components used in the manufacture of the Goods by Seller may contain materials or chemicals which is known to the State of California to cause cancer, birth defects or other reproductive harm. Such materials or chemicals, if any, shall be handled and supplied in compliance with all applicable federal, state and local laws and regulations.
Buyer represents and warrants to Seller the following: (i) that the Buyer’s Content are in compliance with all applicable federal, state and local laws and regulations including but not limited to Prop 65 requirements, (ii) the Goods will not be used in any manner which is unlawful or in violation of any laws, rules, ordinances or regulations, (iii) it is an entity, validly organized and existing and in good standing under the laws of the State in which it was established, (iv) it has full power and lawful authority to execute, deliver, and perform under this Agreement; (v) its execution and performance of this Agreement is not contrary to, or prohibited by, any laws, or agreements to which it is a party or by which it is bound or by any arbitration award, judgment or court order by which it is bound; (vi) this Agreement, and any document executed pursuant to this Agreement, are valid obligations of Buyer enforceable in accordance with their terms; (vii) Buyer has taken all action necessary in order to cause the execution and performance of this Agreement; and (viii) Buyer has the right to use the Goods in the marketing, promotion and distribution of Buyer’s products to which the Goods are affixed.
Buyer agrees to indemnify, defend and hold Seller, its subsidiaries, parent company, affiliates and its officers, directors, managers, employees, representatives, subcontractors, vendors, suppliers, attorneys and agents (the “Seller Indemnitees”) harmless from and against any and all losses, liabilities, damages, claims, deficiencies, fines, assessments, taxes, penalties, interest, costs and expenses, including, without limitation, reasonable attorney’s fees, expert fees and expenses, (collectively, “Losses”) incurred by Seller Indemnitees arising from, in connection with, or incident to a claim brought by a third party in connection with (i) Buyer’s Content provided by Buyer, (ii) infringement by Buyer’s Trademark or other intellectual property provided by Buyer of a third party’s intellectual property rights; (iii) Buyer’s breach of any representation, warranty, covenant or other provision of this Agreement, (iv) the negligent acts or omissions, fraud or willful misconduct of Buyer or its employees or agents, (v) Buyer’s failure to comply with all applicable laws, rules and regulations regarding the Goods or its products, including without limitation packaging, labeling, and advertising, (vi) Buyer’s non-compliance with Prop 65 requirements or other applicable laws, rules, regulations or ordinances, or (v) the shipment, sale or use of the Goods or products outside of the United States; provided, that such indemnification shall not apply to that portion of Losses caused by the grossly negligent acts, misconduct or breach of this Agreement by Seller.
IN NO EVENT SHALL SELLER, ITS SUBSIDIARIES, PARENT COMPANY, AFFILIATES AND THEIR OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, REPRESENTATIVES, SUBCONTRACTORS, VENDORS, SUPPLIERS, ATTORNEYS AND AGENTS (“SELLER PARTIES”) BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING; BUT NOT LIMITED TO, LOSS OF PROFITS; BUSINESS REVENUES, BUSINESS INTERRUPTION AND THE LIKE), ARISING FROM OR RELATING TO THE RELATIONSHIP BETWEEN BUYER AND SELLER, INCLUDING, BUT NOT LIMITED TO ALL PRIOR DEALINGS AND AGREEMENTS, OR THE CONDUCT OF BUSINESS UNDER OR BREACH OF THIS AGREEMENT OR ANY PURCHASE ORDER, SELLER’S CANCELLATION OF ANY PURCHASE ORDER OR ORDERS OR THE TERMINATION OF BUSINESS RELATIONS WITH BUYER, REGARDLESS OF WHETHER THE CLAIM UNDER WHICH DAMAGES ARE SOUGHT IS BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT; NEGLIGENCE, TORT, STRICT LIABILITY, STATUTE, REGULATION OR ANY OTHER LEGAL THEORY OR LAW, EVEN IF SELLER PARTIES HAS BEEN ADVISED BY BUYER OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF SELLER PARTIES IF ANY, SHALL BE LIMITED TO THE LESSER OF THE COST OF REPAIR OR REPLACEMENT VALUE OF THE GOODS; PROVIDED, HOWEVER, THAT UNDER NO CIRCUMSTANCES WILL LIABILITY EXCEED THE AMOUNTS PAID BY BUYER TO SELLER UNDER THIS AGREEMENT. SELLER PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY OR WHICH ARISE OUT OF THE ACTS OR OMISSIONS OF A THIRD PARTY. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
In addition to any remedies that may be provided in this Agreement, Seller may terminate this Agreement and any pending purchase order with immediate effect upon written notice to Buyer, if Buyer (i) fails to pay any amount when due under Sales Invoice and such failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
7.1 Site. This website (“Site”) is intended to set forth the terms and conditions in accessing this Site or using any information contained on this Site. Your use of this Site shall be deemed to be your agreement to each of the terms and all applicable laws set forth below. IF YOU DO NOT AGREE, DO NOT USE THE SITE.
7.2 Proprietary Information. All text, graphics, visual interfaces, photographs, documents (such as manuals), artwork and computer code (the “Materials”), including, but not limited, to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Materials, contained on the Site is owned, controlled or licensed by or to Seller, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. Seller grants you the limited right to display the Materials only on your personal computer for your personal use. You agree not to use the Materials for any other purpose without the prior written consent of Seller. You acknowledge that the Site may include certain inaccuracies or typographical errors, which may affect the quality of Materials and third-party content. Unless otherwise agreed by Seller in writing, you may not engage in any “mirroring” activity to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, including copying, reproducing, republishing, uploading, posting, publicly displaying, encoding, translating, transmitting, or distributing in any way the part of the Site or the Materials.
7.3 Use of the Site. You may not use any “deep-link,” “page-scrape,” “robot,” “spider” or automatic device, program, algorithm or methodology, or any similar equivalent manual process, to access, acquire, copy or monitor any portion of the Site or the Materials, or in any way reproduce or circumvent the navigational structure of the Site to obtain any Materials, documents, or information through any other means intended to achieve the same purpose. You may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any Seller server, or to any of the services offered on or through the Site, by hacking, password “mining” or any other illegitimate means. Seller’s obligations, if any, about its products or services are governed solely by the agreements pursuant to which they are provided, and nothing on this Site should be construed to alter such agreements.
7.4 Third-Party Links. This Site may contain links to other third-party websites (the “Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked sites, if any, are not under Seller’s control, and Seller is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained in such Linked Sites. You will need to make your independent judgment regarding your interaction with these Linked Sites.
7.5 Site Disclaimers. SELLER DOES NOT PROMISE THAT THE ONLINE EXPERIENCE OR ANY SERVICE OR FEATURE OF THE ONLINE EXPERIENCE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. SELLER CANNOT ENSURE THAT ANY DOCUMENTS, MANUALS OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. SELLER DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES REGARDING THE INFORMATION, SERVICES, PRODUCTS, MATERIALS AND ANY OTHER RESOURCES AVAILABLE ON OR ACCESSIBLE THROUGH THE SITE, INCLUDING ANY WARRANTIES OF ACCURACY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE ONLINE EXPERIENCE AND/OR ANY SELLER SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE ONLINE EXPERIENCE AND ANY LINKED WEBSITES. YOUR SOLE REMEDY AGAINST SELLER FOR DISSATISFACTION WITH THE SITE EXPERIENCE OR ANY MATERIALS IS TO STOP USING THE SITE OR ANY SUCH MATERIALS. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of or use, whether for breach of contract, tort, negligence or any other cause of action. Seller reserves the right to do any of the following, at any time, without notice: (i) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (ii) to modify or change the Site, or any portion of the Site; and (iii) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction or other changes.
7.6 Information Submitted by Users. Should any viewer of this Site respond with information, including personal information and feedback data such as questions, comments, and suggestions regarding the content of any portion of this Site, such information shall be deemed to be non-confidential. Seller shall have no obligation of any kind concerning such information and shall be free to reproduce, use, disclose and distribute the information to others without limitation. Further, Seller shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products incorporating such information.
7.7 Limitation of Liability. To the maximum extent permitted by applicable law, Seller, its subsidiaries, parent company, affiliates and its officers, directors, managers, employees, representatives, subcontractors, vendors, suppliers, attorneys and agents (the “Seller Parties”) shall not be liable for any damage suffered as a result of your displaying, copying or downloading information or Material contained on this Site. In no event shall Seller Parties be liable to you or any third-party for any indirect, extraordinary, exemplary, punitive, special incidental or consequential damages (including loss of data, revenue, profits or other economic advantage) arising out of access to or use of any content of any site or sites linked to this Site.
7.8 Changes to Terms of Use. Seller may make improvements and changes to the products or services described in this Site, if any, at any time without notice, and you agree that Seller can revise these Terms of Use at any time without notice by updating this posting. Your continued use of the Site after such modifications have been made to the Site constitutes your acceptance of such revised Terms of Use.
Authorized Communications. Buyer’s submission of contact information through Seller’s Website, contact forms, quote request forms, customer setup forms, or other channels constitutes Buyer’s authorization for Seller to communicate with Buyer regarding the matters described therein. This may include communications by email, telephone, and where Buyer has provided express opt-in consent, SMS text message.
SMS Communications. If Buyer opts in to receive SMS messages from Seller, the terms governing such SMS communications are set forth in Seller’s SMS Terms & Conditions, which are incorporated herein by reference and available at Seller’s Website. SMS communications are limited to transactional purposes including customer service, order status, shipping and delivery updates, product availability, quotes, invoices, returns, and support requests, unless Buyer expressly opts in to additional categories of communications. Buyer may opt out of SMS communications at any time by replying STOP to any message. Consent to receive SMS communications is not a condition of purchase.
Mobile Information. No mobile information will be shared with third parties or affiliates for marketing or promotional purposes at any time. Mobile information is handled in accordance with Seller’s Privacy Policy, which is incorporated herein by reference.
Privacy. Buyer’s information is handled in accordance with Seller’s Privacy Policy, available at Seller’s Website. By engaging with Seller through any communication channel, Buyer agrees to the terms of the Privacy Policy.
In the event of any dispute, controversy or claim arising out of or relating to the transactions contemplated by this Agreement, or the validity, interpretation, breach or termination of any provision of this Agreement (each a “Dispute”), Seller and Buyer agree that the applicable representatives from each Party shall negotiate in good faith in an attempt to resolve such Dispute amicably. If such Dispute has not been resolved to the mutual satisfaction of Seller and Buyer within twenty (20) days after the initial notice of the Dispute (or such longer period as the Parties may agree), then the Dispute, excluding any claim for injunctive relief, shall be resolved through binding arbitration. Each Party expressly waives their right to trial by jury trial and to have a court of law determine rights and award damages with respect to the Dispute. The party invoking arbitration shall notify the other party by written notice. The Parties will engage in a good faith effort to agree on an arbitrator. If the Parties are unable to agree on an arbitrator, the party invoking arbitration shall file for arbitration with Judicial Arbitration and Mediation Services, Inc. (“JAMS”) or successor organization for binding arbitration in Orange County, California by a single arbitrator who shall be a former California Superior Court or Federal District Court judge. The arbitrator shall be selected by JAMS in an impartial manner determined by it. Except as may be otherwise provided herein, the arbitration shall be conducted under the California Arbitration Act, Code of Civil Procedure §§11280 et seq. The Parties shall have the discovery rights provided in Code of Civil Procedure §§1283.05 and 1283.1. The arbitration hearing shall be commenced within ninety (90) days of the filing of the application with JAMS by any Party, and a decision shall be rendered by the arbitrator within thirty (30) days of the conclusion of the hearing. The arbitrator shall have complete authority to render any and all relief, legal and equitable, appropriate under California law, including award of punitive damages where legally available and warranted. The award of the arbitrator shall include factual findings and the reasons upon which the decision is based. The arbitration award shall be final and binding regardless of whether one of the Parties fails or refuses to participate in the arbitration. The arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected pursuant to California Code of Civil Procedure §§1286.2 or 1286.6 for any such error. The arbitrator shall award costs of the proceeding, including reasonable attorneys’ fees and expert fees to the party determined to have substantially prevailed.
Choice of Law. This Agreement (and/or any dispute arising out of or in any way related to this Agreement) shall be governed by and construed in accordance with the laws of the State of California. Any action between the Parties which arises from or is any way related to this Agreement shall be venued in the County of Orange.
Assignment. Buyer shall not transfer or assign the Agreement or any part thereof without the prior written consent of Seller. Seller may, at its sole discretion use or employ any subcontractors, independent contractors or affiliates to manufacture and provide the Goods hereunder.
Solvency of Parties. In entering into this Agreement, both Parties to this Agreement represent that they are not financially insolvent and that they have the financial means to carry out their respective obligations under this Agreement. In entering into this Agreement, Seller is relying on Buyer’s representation of financial solvency in order to further conduct business relations with Buyer.
Representations. No party has made any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and each party does not rely upon any statement, representation; or promise of any other party in executing this Agreement, except as expressly stated in this Agreement.
Notices. Any notices required to be given under this Agreement by either party to the other may be affected by personal delivery in writing or by first class mail, registered mail or certified mail; postage prepaid with return receipt requested or by trackable parcel delivery service that records delivery confirmation signatures such as (but not limited to) Federal Express and United Parcel Service. Notices delivered personally will be deemed communicated as of actual receipt; mailed notices will be deemed communicated as of the day of receipt or the third day of mailing, whichever occurs first.
9.6 Waiver. The failure of either Party at any time to require performance by the other Party of any provision hereof shall not affect in any way the full right to require such performance at any time thereafter. Nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the Parties that all other provisions of this Agreement be construed to remain fully valid; enforceable, and binding on the Parties.
Attorneys’ Fees. In the event that litigation, judicial process or any other action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to attorneys’ fees and costs.
Force Majeure. The inability of any Party to commence or complete its obligations hereunder by the dates herein required resulting from events beyond the Party’s reasonable control, including delays caused by strikes, insurrection, acts of God, war, and lawful government action which shall have been timely communicated to the other Party, shall extend the period for the performance of the obligations for the period equal to the period(s) of any such delays(s); provided, that such Party shall provide immediate written notice to the other Party and continue to perform to the extent feasible in view of such force majeure event; and provided, further, that, if such force majeure event shall continue for a period of thirty (30) days, the affected Party shall have the right to terminate this Agreement upon written notice to the non-performing Party. The provisions hereof shall not apply to monetary amounts due or owing by either Party to the other. Notwithstanding the foregoing, Seller acknowledges and agrees that Buyer may, in its sole discretion and without any further liability or payment obligation hereunder, obtain a Service provided by Seller hereunder from an alternative third-party service provider.
Buyer Not Agent or Legal Representative. This Agreement does not constitute Buyer the agent or legal representative of Seller for any purpose whatsoever. Buyer is not granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of Seller or to bind Seller in any manner.
9.11 Severability. In the event any provision of this Agreement shall be held invalid or unenforceable for any reason, that provision shall be ineffective to the extent of such invalidity or unenforceability, and such invalidity or unenforceability shall not affect any other provision of this Agreement. If necessary, the Parties shall negotiate in good faith to modify the Agreement to preserve (to the extent possible) their original intent.
Amendments. Any amendment, addendum or revision to this Agreement shall be valid only if in writing and signed by the Parties.
Interpretation. This document shall be deemed to have been mutually drafted by the parties hereto. Any ambiguity in the interpretation of this Agreement shall not be construed or interpreted against either party.
Independent Review. Each party hereto acknowledges and represents that he has fully and carefully read this Agreement and is entering into this Agreement as a free and voluntary act.
Entire Agreement. This Agreement constitutes the final; complete; exclusive and entire agreement among the Parties with respect to the subject hereof. Any statement of Seller or any agent of Seller or any different or additional terms and conditions of other order form(s) submitted by Buyer respecting the Goods or the order shall be given no force or effect.
No Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Buyer and Seller and their permitted successors and assigns and this Agreement shall not be deemed to create any rights in third parties, including without limitation, Sellers and Buyers of a Party, or to create any obligations of a Party to any such third parties.