Terms and Conditions of Sale
FORMATION OF CONTRACT. An order is deemed by Seller to be an offer to purchase, which Seller may accept or reject in its sole discretion. Seller’s acceptance of an offer to purchase is binding on Seller only if made by written instrument or, if not by written instrument, by shipment of the products ordered (and acceptance by shipment shall only be binding as to the portion of the order actually shipped by Seller). Any automatic or computer-generated response to an order by Seller’s [internal electronic data exchange system] or otherwise shall not be deemed acceptance of an order. Seller’s acceptance is subject to Seller’s Terms and Conditions of Sale stated herein.
TRANSFER OF PROPERTY AND RISK OF LOSS. Seller retains the right and title to the products sold to Buyer until Seller is paid in full for the products. Buyer shall obtain the right and title to the products upon payment to Seller of the purchase price and any taxes, excise or other charges. The risk of loss, including, but not limited to the risk of loss, theft, damage or destruction of the products, transfers to Buyer F.O.B Seller's Warehouse
SPECIFICATIONS; REFUNDS. Please be aware that the specifications for the Products may change prior to shipping. If before your order has shipped, there is a material change to the Product that adversely affects its performance, you will be notified and have the option to cancel your order. If you cancel your order, we will promptly process a refund, if applicable.
COST OF DELIVERY, TAXES AND OTHER CHARGES. Buyer shall pay the costs of delivery of the products. Buyer shall pay all sales, use, excise or similar taxes, or other charges, which Seller is required to pay, or to collect and remit, to any Government (national, state or local) and which are imposed on or measured by the sale.
INTELLECTUAL PROPERTY. Seller and its licensors own all intellectual property rights in the Products. If Seller accepts your purchase order for a Product, you will acquire no interest or rights in Seller's intellectual property, and your use of the Product will be subject to the Seller Terms of Service and other additional license terms and restrictions that will be provided together with the Product. Seller reserves all rights in and to the Products not granted expressly in these Terms or other additional license terms. Seller reserves the right to discontinue deliveries of any products, the manufacture, sale or use of which would, in Seller’s opinion, infringe upon any U.S. patent, trade mark or design now or hereinafter issued, registered, or existing and under which Seller is not licensed.
NO SET-OFF. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller’s prior, express written approval.
DISCLAIMER OF WARRANTIES. THE WARRANTIES SET FORTH HEREIN OR IN SELLER’S WARRANTY DOCUMENTS WITH RESPECT TO A PRODUCT ARE THE ONLY WARRANTIES MADE BY SELLER IN CONNECTION WITH THE PRODUCTS AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS SALE. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO BUYER OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND SELLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE SELLER IN WRITING. SELLER’S SOLE OBLIGATION FOR A REMEDY TO BUYER SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.
LIMITATION OF LIABILITY. No claim by Buyer of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of product delivered or non-delivery, shall be greater in amount then the purchase price for the products in respect of which damages are claimed. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE PRODUCTS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
INSPECTION. Buyer shall inspect the products promptly upon receipt for non-conformity (including but not limited to non-conformity for quantity, quality, and/or defects). Failure by Buyer to provide Seller with written notice of a claim within 30 days from the date of delivery or, in the case of non-delivery, from the date fixed for delivery, shall constitute a waiver by Buyer of all claims with respect to such products.
SELLER’S RIGHTS. If Buyer should fail in any manner to fulfill the terms and conditions hereof, Seller may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller. If for any reason, the quantities of the products covered hereby or of any materials used in the production of the products reasonably available to Seller shall be less than Seller total needs for its own use and for sale, Seller may allocate its available supply of products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Seller deems proper in Seller’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this Agreement.
FORCE MAJEURE. If Seller accepts your purchase order, Seller will not be liable to you for any delay, including any delay due to an event beyond Seller's reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of Seller's control.
CONTROLLING LAW AND SEVERABILITY. These Terms will be governed by and construed in accordance with the laws of the State of Florida, excluding its conflict of law principles. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any portion of these Terms to be unenforceable, the remainder of these Terms will continue in full force and effect.
DISPUTE RESOLUTION. In the interest of resolving disputes between you and Seller in the most expedient and cost effective manner, you and Seller agree that every dispute arising in connection with these Terms will be resolved by binding arbitration as directed under the Delaware Rapid Arbitration Act 10 Del. C. § 5801, et seq. (“DRAA”). You and Seller agree that the arbitration shall be conducted in accordance with the Model Rules for Arbitration under the DRAA, available at www.rlf.com/DRAA/ModelRules, as such Rules may be amended or changed from time to time; provided that the parties may agree to depart from the Model Rules by (i) adopting new or different rules to govern the arbitration or (ii) modifying or rejecting the application of certain of the Model Rules.
NO ASSIGNMENT. This contract between Buyer and Seller is not transferable by either party without the prior written consent of the other party, except that Seller may assign this Agreement without Buyer’s consent if the assignment is to a to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Seller’s assets.
COMPLIANCE WITH LAWS; EXPORT LAWS. Buyer and Seller shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of this Agreement. Buyer agrees to adhere to all applicable US Export laws and regulations with respect to the products.
VENUE AND JURISDICTION. You and Seller are required by these Terms to resolve claims through binding arbitration. Nonetheless, if suit is to be entered, the you agree to jurisdiction in Florida’s Eighteenth Judicial Circuit sitting in Brevard County, Florida. Similarly, if jurisdiction lies in the Federal Court, the complaint will be filed in the United States District Court for the Middle District of Florida. Each Party waives the right to institute or maintain any suit, action, or proceeding in any other court or forum. By submitting your purchase order, you and Seller consents and submits to the personal jurisdiction of such Courts.
NOTICE; PROCESS. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or, only if such other party has not provided a current physical address, then by electronic mail ("Notice"). Seller's address for Notice is: Rocky and Maggie’s Pet Products, Inc., 1600 Sarno Road, Suite 114, Melbourne, FL 32935. The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Seller may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Seller must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
MISCELLANEOUS. These Seller’s Terms and Conditions of Sale are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated by this sale, notwithstanding any other terms that might be contained in any purchase order or other document received from Buyer or submitted to Seller. These Terms and Conditions of Sale constitute the entire agreement between the parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representatives of both parties. No waiver by Seller of any of Seller’s Terms and Conditions of Sale or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Seller’s Terms and Conditions of Sale. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Seller’s Terms and Conditions of Sale.