Terms and Conditions
A. Confidentiality: Unless otherwise noted, all information received by Customer from Company (the “Seller”) is to be deemed confidential including but not limited to; pricing, product specifications, facility information and general know how.
B. Disclaimer of Warranties. SELLER SPECIFICALLY DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF CONDUCT OR USAGE OF TRADE. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE PRODUCTS OTHER THAN AS PROVIDED IN THIS SECTION.
C. Third Party Beneficiary: Seller expressly disclaims any liability to or warranties made for the benefit of any third party, including, but not limited to, any third party to whom Customer may sell or transfer the goods which are the subject of this Agreement (“Agreement”). Notwithstanding the foregoing, these terms shall be binding upon Customer and all subsequent owners and users of these goods.
D. Exemption: Those customers who have either signed one of Seller’s policies or agreements OR if there is a separate agreement signed by both Seller and Customer then those Customers may be exempt from certain provisions of this Agreement. In this situation if a provision in the agreement Customer has signed conflicts with this Agreement then that provision in the signed agreement will supersede the provision herein and govern that subject matter. The remainder of provisions herein that do not conflict with provisions in such written agreement will be governed by the provisions in this Agreement.
E. Return Policy: Seller’s return policy and other business terms are located on Seller’s website under Return Policy. That Return Policy is hereby incorporated herein by reference. Please refer to the Seller’s website for more information.
F. Limitation of Liability: Seller shall not be responsible or held liable to Customer for indirect, consequential, incidental, special or exemplary damages, including but not limited to, loss of revenue or anticipated profits, loss of investment, loss of product, business interruption or lost business, personal injuries or any payments due for personal injury, even if Seller has been advised of the possibility of such damages. Notwithstanding the foregoing, any liability incurred by Seller, including obligations under any indemnity, shall be limited to the value of the products actually purchased by Customer from SELLER that gave rise to the claim or liability, and in no circumstances shall exceed the lesser of (i) Customer’s insurance deductible; (ii) $500,000 per occurrence, (iii) $1,000,000 in the aggregate. These terms shall apply regardless of the form of action, whether in contract, in tort (including negligence and strict liability) or otherwise, and extends to Seller’s employees, agents, and representatives as third-party beneficiaries.
G. Indemnification. Customer shall indemnify, defend and hold Seller, its successors, assigns and affiliates and their directors, officers, employees, agents, representatives and shareholders harmless from and against any and all claims, demands, losses, liabilities, costs, damages, and causes of action, including attorneys’ fees and costs, arising out of or in any way related to Customer’s negligence, acts or omissions, whether arising out of contract, tort, or otherwise, unless due to Seller’s willful acts or omissions.
H. Venue and Choice of Law: The Agreement shall be deemed entered into in the State of Florida and shall be construed and enforced in accordance with Florida law. The parties agree that the Florida courts shall have jurisdiction and shall be the proper place of venue with respect to any litigation relating to, or arising out of, this Agreement. The Customer waives the right to trial by jury in any action related to or arising from this Agreement.
I. Attorneys’ Fees and Costs: If Customer breaches the terms of this Agreement, Customer agrees to pay Seller all costs of the collection and enforcement of this Agreement, including attorneys’ fees and costs, whether incurred in or out of court.
J. Assignability: The Customer may not assign its rights or obligations under this Agreement without Seller’ consent. This Agreement shall be binding upon the parties hereto, their heirs, assigns or successors in interest by merger, operation of law, or by purchase of the entire or substantially all the business of either party.
K. Acknowledgment of Acceptance: All representations relating to the goods and services are contained in this Agreement. Customer acknowledges that, before accepting any goods and services from Seller, it has read and understood all terms and conditions herein, in particular Paragraph II titled “Warranties.” By accepting any products, Customer accepts the terms set forth herein.
L. Conflicts: The terms of this Agreement shall control if in conflict with the terms of the Customer’s purchase order.
M. Survival: The sections contained B, C, F, & G and all other sections providing for limitation of or protection against liability of Seller in this Agreement shall apply notwithstanding any other provision of this Agreement and shall survive termination, cancellation or expiration of this Agreement.
N. Severability: If all or any part of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder shall remain valid and enforceable according to its terms. The parties further agree to replace any such void or unenforceable provision of this Agreement with a valid and enforceable provision which will achieve, to the extent possible, the economic, business, and other purposes of the void or unenforceable provision.
LD 10.17.13 v.1