BRANDCOMET (the "Seller”) subscribes to the following standard terms and conditions of sale:
The “Purchaser”, as noted in the “bill to” section of the order acknowledgment (whether by individual, legal, corporate, affiliate, subsidiary, or fictitious name, and regardless if Purchaser’s address is correctly transcribed), offers and agrees to purchase the goods described on the order acknowledgment from the "Seller" (collectively the “Parties”) on the following terms and conditions, which are an integral part of the order (the “Agreement”):
1. Acceptance Pending: The Purchaser’s offer to purchase is subject to approval and acceptance only by the Seller's duly authorized corporate officers at the Seller's headquarters (Maitland, FL). Such approval will cover only materials and services specified in writing on the order acknowledgment, and no statement, promise, warranty, or agreement made by any salesman, field representative, employee, independent contractor, agent, or any third party, whether verbal or in writing, shall be binding upon the Seller.
2. Firm offer: The offer to purchase is a firm offer; it will be held open, with the Purchaser’s option to revoke with written notification to Seller within 24 hours of approval of order acknowledgment. This option will cease upon acknowledgment, acceptance, performance, or fulfillment prior to notification.
3. Acceptance: This offer may be accepted by written acknowledgment, by performance, or by the making of any arrangements preparatory to performance, or in any other appropriate manner. The Seller need not give the Purchaser notice of acceptance. After acceptance, the Agreement cannot be modified, rescinded, waived, or changed, except by a written revised order acknowledgment submitted by Seller and returned signed on each page by Purchaser. Any Purchaser request for any change or cancellation must be clearly and promptly submitted in writing to the Seller, and the Purchaser agrees to pay immediately in full any expenses incurred or committed by the Seller prior to the Seller’s receipt of the request for the change or cancellation.
4. Quantity Variance: The Seller may tender any quantity of goods that is not less than 90% or more than 110% of the quantity for each item specified on the order acknowledgment unless otherwise noted. Where the percentage results in a fraction of units (where the unit of measure is indivisible), the Seller may, at the Seller’s absolute and sole discretion, round to either of the nearest whole numbers. Such tender shall be a conforming tender, and the item price or amount specified shall be ratably adjusted for the actual item amount shipped with the Purchaser obligated to remit payment for actual items shipped including prorated adjustment in shipping and other related costs. This obligation of the Purchaser is effective regardless of whether the order acknowledgment adjustment is made before or anytime after shipment.
5. Shipment: The Seller may ship the goods at any time convenient to the Seller, in a single lot or several lots. The Seller is not obligated to notify the Purchaser prior to any shipment, with the shipment and / or delivery dates listed on the order acknowledgment to be met only on a best efforts basis and not guaranteed in any manner. Subject to any special shipping instructions on the order acknowledgment, the Seller or its agent may pack and ship the goods, select a carrier, make a transportation and / or customs contract, and put the goods into the possession of a carrier, in any manner and on any terms the Seller or its agent determines suitable. The Purchaser is responsible to pay all applicable freight, transit, forwarding, duties, and customs charges, including all billing and address correction charges caused by the Purchaser not correctly identifying or correcting the shipping address (including type of address) when approving the order acknowledgment or any revision to the order acknowledgment.
6. F.O.B.: This sale is made F.O.B. point of shipment. All goods once shipped are the Purchaser's; the Purchaser shall duly pay for (and the Seller shall have no liability for) goods damaged, destroyed, or lost in transit. Purchaser will contest or make any claim on any subject relative to any shipment directly with the appropriate carrier.
7. Security Interest: The Seller reserves a tangible security interest in all goods as security for the payment of the full order amount and all other obligations of the Purchaser. This includes full authorization (including right of use and / or sale of items with a proprietary right that is normally protected by patent, copyright, trademark, or other law) to take immediate possession with full ownership rights, and dispose of, use, or sell in any manner the Seller decides (at the Seller’s absolute and sole discretion), with all proceeds to be fully retained by the Seller without any obligation to the Purchaser.
8. LIMITED WARRANTY: The Seller warrants that the goods will at the time of shipment conform to the description on the order acknowledgment, and that the Purchaser will acquire good title to the goods upon completion of all Purchaser payments and obligations. The Purchaser agrees that descriptions that include decorations, dimensions, or colors (whether product or decoration colors) are all approximate and on a best efforts basis, with a potential for variations between any pictures (whether in print or online), any samples, and any production, including within the same production lot. The Purchaser agrees that these decoration, dimensional, and color variations can not a basis for any claim for non-conformance of goods. THE SELLER MAKES NO OTHER AFFIRMATIONS, PROMISES, OR WARRANTIES, EXPRESS OR IMPLIED, as to the goods or the condition, quality, or characteristics of the goods, or as to any other matter whatsoever. THE SELLER SPECIFICALLY DISCLAIMS AND EXCLUDES ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
9. Claims: In the event of any breach of the warranty made in Section 8 above, the Seller will, upon reasonable notice from the Purchaser within three (3) business days of receipt of goods, either replace the affected goods with conforming goods of like or similar manner, or refund the purchase price paid by the Purchaser to the Seller for the affected goods, at the Seller's absolute and sole discretion, judgment, and option. The foregoing remedies shall constitute the SOLE AND EXCLUSIVE POTENTIAL REMEDY for any breach of warranty. This exclusive potential remedy shall not be deemed to have failed of its essential purpose under any circumstances. If the Purchaser’s claim is late, unprofessional, unclear, or otherwise considered unreasonable, at the sole and absolute discretion of the Seller, the sale shall terminate as final with no remedy available. THE SELLER SHALL NOT BE LIABLE UNDER THIS AGREEMENT, OR WITH RESPECT TO THE SALE, FOR INCIDENTAL DAMAGES, FOR CONSEQUENTIAL DAMAGES, FOR BREACH OF WARRANTY DAMAGES, OR FOR ANY OTHER DAMAGES OF ANY KIND.
10. Returns: No goods may be returned by the Purchaser to the Seller without the Seller's prior written consent (Return Material Authorization), and then only to the extent of the quantity and under the terms and conditions set forth in such writing.
11. Interest: The Purchaser shall pay the balance of the total purchase amount set forth on the order acknowledgment to the Seller on the date of invoice, unless the due date is otherwise stated on the face of the invoice. If the Purchaser fails to pay the purchase price, or any part thereof, when due, in addition to the security interest noted in Section 7 above, the Purchaser will further pay a monthly service charge (i) at the rate of eighteen percent (18%) per annum applied to any unpaid balance, if the Purchaser is a corporation; or (ii) at the highest lawful contract rate permitted under the laws of the State of Florida, applied to any unpaid balance, in all other cases. In addition, the Purchaser agrees to pay a collection fee of twenty-five percent (25%) of the unpaid balance, should it become necessary for the Seller to engage outside professional services in the collection of this obligation due to the Purchaser's failure to duly and punctually pay the balance due, and / or reasonable attorney's fees with court costs.
12. Force Majeure: The Seller shall not be liable for any breach, default, or delay caused by inability to obtain transportation, inability to obtain materials, delay of materials in transit from a manufacturer or supplier, or failure to make delivery by a manufacturer or supplier, shortage of fuel, failure of sources of supplies, strike, lock-out, labor disputes, fire, flood, accident, invasion, riot, war, terrorism, revolution, embargo, restraint or demand of any government organization, failure of the Purchaser to timely perform any obligations with respect to this Agreement, or any other cause or contingency beyond the control of the Seller.
13. Indemnification: The Purchaser will indemnify the Seller and hold the Seller harmless from and against all claims, demands, liabilities, and expenses, including (without limitation) claims of infringement of patent, trademark, copyright, or other proprietary right, invasion of privacy, or any other matter, arising from the use of any logo, graphic, picture, plate, advertising copy, specifications, or material furnished to the Seller by the Purchaser, or prepared or modified by the Seller at the Purchaser's request, including reasonable attorney's fees with court costs (see related Exhibits to this Agreement: Invoice / Order Acknowledgment, Art Approval Release, Credit Card Authorization, and Authorization to Reproduce).
14. Taxes: The Purchaser will pay all applicable sales, use, duty, and other taxes and impositions, due or arising in connection with this sale, or applicable to the goods after delivery.
15. Advances: The Purchaser fully acknowledges that any Seller's representative has no authority to confirm any advances or payments that bind the Seller.
16. No Agency: The Seller, in rendering performance under this Agreement, is acting solely as an independent provider of materials and services. The Seller does not undertake by this Agreement or otherwise to perform any obligation of the Purchaser, whether by regulation or contract. In no way is the Seller to be construed as the agent (or acting as the agent) of the Purchaser in any respect, any other provisions of this Agreement notwithstanding.
17. Bankruptcy: If the Purchaser shall fail to pay any indebtedness owed to the Seller, shall become insolvent, shall cease to carry on business substantially as conducted on date of order, shall suffer the appointment of a receiver, or the commencement of any proceeding under any bankruptcy or insolvency law, or if the Seller shall at any time in good faith believe that any such event has occurred or that, for any other reason of the Seller, the prospect of due and punctual payment of the Purchaser's obligations is impaired, then the Seller may immediately suspend its performance under this Agreement and may demand immediate payment of all amounts due (or to become due) to the Seller from the Purchaser with respect to this Agreement.
18. Entire Agreement: This Agreement sets forth the entire agreement between the Parties with respect to the subject matter covered. It supersedes all prior offers and agreements. The provisions of this Agreement shall govern and displace any inconsistent provisions which may be set forth in any order form or other document heretofore or hereafter submitted to the Seller by the Purchaser. The Seller specifically objects to the inclusion of any terms or conditions proposed by the Purchaser that are different from, or in additional to, the terms and conditions set forth herein, and the Purchaser agrees to only these terms and conditions. No change, waiver, or discharge hereof shall be valid unless it is in writing and is executed by the Party against whom such change, waiver, or discharge is sought to be enforced.
19. Severability: If any provision of this Agreement is held to be invalid by a U.S. court of law, the other provisions will not be affected to the greatest extent possible, consistent with the Parties' intent.
20. Multiple Counterparts, Exhibits: This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the Parties. Likewise, the Exhibits referred to herein (and / or attached hereto) are incorporated herein to the same extent as if set forth in full herein. Any conflict between these terms and conditions of sale and the Exhibits will defer to these terms and conditions.
21. Section Headings: The Section headings used are for reference and convenience only, and shall not enter into the interpretation hereof.
22. Required Approvals: Where agreement, approval, acceptance, or consent by either Party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
23. Compliance With Law: Each Party agrees to comply with all applicable U.S. federal and state laws, regulations, and ordinances relating to their performance hereunder. The Parties further agree to cooperate with each other in any efforts to obtain available protection for any Intellectual Property Rights under U.S. and foreign laws, and to secure such certifications, registrations, or licenses as may be appropriate for the protection of the same rights in the U. S. or any foreign country. Any incremental expenses for materials, services, time, or travel for these efforts will be borne in advance by the owner of the rights.
24. No Waiver: No delay or omission by either Party hereto to exercise any right or power occurring upon any non-compliance or default by the other Party with respect to any of the terms of this Agreement shall impair any such right or power, or be construed to be a waiver thereof. A waiver by either of the Parties hereto of any of the covenants, conditions, obligations, or agreements to be performed by the other Party shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, obligation, or agreement herein contained.
25. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, Orange County, wherein sole jurisdiction shall rest.
26. Dispute Resolution: Each Party agrees that, unless otherwise required in order to comply with deadlines under the law, it will not file any action or institute legal proceedings with respect to any dispute, controversy, or claim arising out of, relating to, or in connection with, this Agreement, until: (i) i t has given the other Party written notice of its grievance; (ii) the other Party has failed to provide a prompt and effective remedy as solely determined by the Party initiating the grievance; (iii) it has requested senior representatives for both Parties to discuss the matter in order to consider informal and amicable means of resolution; and (iv) either such discussions failed to occur within thirty (30) calendar days after such request, or the discussions did not produce a mutually satisfactory resolution of the matter as solely determined by the Party initiating the grievance.
27. No Assignment: Neither Party may, without the prior written consent of the other Party, assign or transfer the Agreement or any obligation incurred hereunder. Any attempt to do so in contravention of this Section shall be void and of no force and effect.
IN WITNESS WHEREOF, the Purchaser and BRANDCOMET have caused this Agreement to be signed and delivered by their duly authorized representatives or officers, all effective and in force as of the last date written below. Purchaser’s duly authorized representative’s or officer’s signature on the order acknowledgment shall be similarly binding in all aspects as if signed below
For Purchaser: 00
For Seller: BRANDCOMET
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Date: ______________________________________________________00000000)Date: _______________________________________________