TERMS AND CONDITIONS OF SALE
- General. Please read these Terms and Conditions of Sale (“Terms and Conditions”) carefully. As used herein, “Goods” means any goods provided by [John Paul Ataker] (“Seller”). The terms and conditions applicable to the sale of any Goods by Seller are limited to those set forth herein. Any additional or different terms or conditions in any form delivered by the purchaser of any Goods (“Buyer”) are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given by Seller. All sales of Goods shall be made only upon these Terms and Conditions and not onany purchase order or other document of Buyer. BY ACCEPTING DELIVERY OF GOODS FROM SELLER, BUYER SHALL BE DEEMED TO HAVE CONSENTED TO AND ACCEPTED THESE TERMS AND CONDITIONS, IN SPITE OF ANY CONFLICT WITH ANY TERMS OR CONDITIONS IN ANY PRIOR OR LATER COMMUNICATION FROM BUYER. Seller’s failure to object to any terms which conflict with these Terms and Conditions shall not be deemed a waiver of objection thereto. These Terms and Conditions constitute a binding contract between Seller and Buyer, and are subject to change by Seller without prior notice to Buyer, except that the Terms and Conditions posted on Seller’s website located at www.johnpaulataker.myshopify.com (the “Website”) at the time Buyer places an order for Goods will govern the order in question, unless otherwise agreed in writing by Seller and Buyer.
- Prices. All prices are subject to change without notice and will be established at the time of order acceptance by Seller, subject to Seller’s rights as described herein. Order acceptance and sale by Seller occurs at the time of shipment. Prices quoted are subject to change without notice after the date of Seller’s acceptance of Buyer’s order where Seller has incurred increased costs due to exchange rate change, import duty change, increased prices from supplier or surcharges, or where Seller has otherwise been impacted by changing market conditions. Seller reserves the right to amend prices to correct errors or omissions.
- Delivery. Delivery dates quoted by Seller are best estimates only and time is expressly not of the essence unless otherwise stated. Late or partial delivery does not entitle Buyer to cancel its order. Buyer acknowledges that Seller will not be liable for any damage or injury arising from a delay in delivery. In the event of delivery by installments, Buyer is not entitled to treat the delivery of faulty Goods in any one installment as a repudiation of the entire agreement between Seller and Buyer. Buyer must (i) promptly notify Seller in writing of non-delivery of any Goods, or (ii) within five (5) days of the relevant delivery date, notify Seller in writing of Buyer’s receipt of nonconforming or damaged Goods. If Buyer does not give Seller such notice as stated herein in respect of any Goods, Buyer agrees that such Goods will be deemed to have been accepted by Buyer as of the relevant date of shipment. If the approval of any government or governing organization is required with respect to any sale or delivery of Goods, including, without limitation, in order to give legal effect to these Terms and Conditions and/or to comply with any foreign or domestic exchange regulations, Buyer will, at its sole expense, immediately take whatever steps may be necessary to secure such approval. If any such approval requires or results in the deletion or amendment of any provision of these Terms and Conditions, then Seller shall have the right to immediately terminate these Terms and Conditions.
- Limited Warranties. SELLER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO GOODS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. Buyer expressly waives any claim that it may have against Seller or its affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Goods and also waives any right to indemnification from Seller or its affiliates against any such Claim made against Buyer by a third party. Buyer acknowledges that no employee of Seller or its affiliates is authorized to make any representation or warranty on behalf of Seller or any of its affiliates that is not included in these Terms and Conditions.
- Limitation of Liabilities. UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SELLER, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIALDAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST BUYER BY ANY THIRD PARTY; OR (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH BUYER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SELLER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO ANY GOODS. IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SELLER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY BUYER FOR THE GOODS GIVING RISE TO THE CLAIM; OR (B) [$25,000.00]1. SELLER WILL NOT BE RESPONSIBLE FOR AND NO LIABILITY SHALL RESULT TO SELLER OR ANY OF ITS AFFILIATES FOR ANY DELAYS IN DELIVERY OR IN PERFORMANCE WHICH RESULT FROM ANY CIRCUMSTANCES BEYOND SELLER’S REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, THE UNAVAILABILITY OF ANY GOODS, CARRIER DELAYS, DELAYS DUE TO FIRE, SEVERE WEATHER CONDITIONS, FAILURE OF POWER, LABOR PROBLEMS, ACTS OF WAR, TERRORISM, EMBARGO, ACTS OF GOD OR ACTS OR LAWS OF ANY GOVERNMENT OR AGENCY.
- Payment. Seller requires Buyer to deposit with Seller a non-refundable amount equal to twenty five percent (25%) of the purchase price of any Goods at the time Buyer places an order with Seller for such Goods (the “Deposit”). The balance of the purchase price in excess of the Deposit is due to Seller promptly upon delivery to Buyer of such Goods. Interest at ten percent (10%) per annum (or the maximum rate allowed by law if less) will be payable by Buyer to Seller on any payment amount outstanding for longer than thirty (30) days. In the event of Buyer’s default on its obligations to make any payment to Seller, Buyer shall be responsible for all reasonable fees, costs and expenses (including attorneys’ fees) incurred by Seller in connection with the collection of any sums owed by Buyer. Notwithstanding any statement to the contrary by Buyer, Seller shall be entitled in its absolute discretion to apply any payment received from Buyer to Seller towards any indebtedness of Buyer, whether in connection with the applicable sale of Goods or any other agreement. Payment of any amounts due to Seller may be made by credit card, certified check or wire transfer of immediately available funds.
- Taxes. Buyer shall bear all applicable federal, state, municipal, and other government taxes (including, without limitation, any sales tax , value-added tax or export duty) arising in connection with the sale of Goods to Buyer. Unless otherwise specified, prices quoted by Seller do not include such taxes. Exemption certificates, valid in the place of delivery, must be presented to Seller prior to shipment as a condition to their being honored.
- Ownership and Risk. Title and risk of loss pass to Buyer upon delivery. All Goods are shipped at Buyer’s risk and Seller’s responsibility for damage to goods shall cease upon delivery of the Goods to Buyer, Buyer’s carrier or Buyer’s agent at Seller’s facility, whichever occurs earlier, at which time “delivery” to Buyer is deemed to have been made. [In the absence of instructions as to shipping, Seller will select a carrier who is not its agent.]2 Special instructions with regard to packaging must be made in writing by Buyer on the purchase order. Seller will have no liability with respect to the shipment of any Goods.
- Cancellations Requests. Requests to cancel orders must be made by Buyer to Seller within seven (7) days of the relevant order. Seller is under no obligation to accept such cancellations. In the event Seller accepts a cancellation request, if the cancellation request was not made before the earlier to occur of (i) the date which is three (3) days after the date of the relevant order or (ii) the date on which Seller begins production of the ordered Goods, the Deposit paid by Buyer in connection with the relevant order shall be deemed forfeited to Seller to cover Seller’s restocking expenses. Any other amounts paid by Buyer prior to the date of cancellation (including the Deposit in the event the cancellation request was timely placed to avoid forfeiture of the Deposit in accordance with this paragraph) shall be converted to credit with Seller, and shall otherwise not be refunded. Without waiving any of its rights, Seller is entitled to recover its costs incurred and profits lost as a result of Buyer’s cancellation or rescheduling of any order.
- Return of Goods. Undamaged Goods may be returned at Buyer’s expense to Seller for credit within seven (7) days of Buyer’s receipt of such Goods. Provided that Buyer has given Seller written notification of a defect within three (3) days of Buyer’s receipt of the applicable Goods, Seller guarantees to refund the cost of or at its discretion to repair or replace free of charge any of the Goods found to its satisfaction to be defective owing to faulty design or workmanship.
- Restrictions on Resale. Buyer acknowledges that the success of Seller’s business depends in large part on Seller’s ability to control the spread of Seller’s Goods and other inventory into the marketplace. In recognition of the foregoing, Buyer agrees that it will strictly limit its resale of any Goods to retail end-users of such Goods. Buyer agrees that it will not resell, or offer to resell, any Goods or any of Seller’s designs relating to any Goods to any retailer, distributor, wholesaler, designer, manufacturer, importer or other dealer. Buyer further agrees that it will conduct any and all resales of Goods either in person or over the telephone, and that it will not sell, or offer to sell, any Goods by digital or other electronic means, including by means of any website; provided, however, that (i) nothing herein shall be deemed to restrict Buyer from communicating with its customers via electronic mail and (ii) nothing herein shall be deemed to restrict Buyer from advertising any Goods via electronic or digital means, including on any website, provided that (A) any such advertisement expressly states that sales of Goods may occur only in Buyer’s stores and (B) no price of any Goods is included in such advertisement.
- Intellectual Property. Unless otherwise specifically agreed to in writing by Seller, all drawings, designs, techniques, processes, inventions, patents, patent applications and other intellectual property (i) now owned by Seller, (ii) created hereafter by Seller outside the scope of Buyer’s purchase order or (iii) created by Seller or created jointly by Seller and Buyer in connection with any purchase order (collectively,“Seller’s Intellectual Property”) shall be and shall remain Seller’s property. Seller grants no license or other right to Buyer in Seller’s Intellectual Property, whether now owned or hereafter created.
- Export Control Regulations. Some or all of the goods supplied by Seller may be subject to export control regulations. Such goods may not be imported or exported by Buyer without prior approval of the relevant authorities. It is the responsibility of Buyer to obtain such approval. Under no circumstances will Seller be liable for any loss or damage incurred by Buyer as a result of Buyer’s contravention of any export control regulations.
- Governing Law; Jurisdiction. Each sale of Goods is governed by the laws of the State of New York without giving effect to the principals of conflict of laws. If any dispute should arise between Seller and Buyer as to this agreement or the Terms and Conditions, Buyer hereby expressly submits and consents to jurisdiction of the state and federal courts located in the City and State of New York for the purpose of legal resolution.
- Binding Effect; Assignment. These Terms and Conditions shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns. Seller may assign or subcontract all or any portion of its rights or obligations with the respect to the sale of any Goods or assign its right to receive payments to any other person, without Buyer’s consent. Buyer may not assign these Terms and Conditions, or any of its rights or obligations herein, without the prior written consent of Seller.
- Relationship of the Parties. Buyer’s relationship with Seller will be that of an independent contractor. Buyer will not have, and will not represent that it has, any power, right or authority to bind Seller, or to assume or create any obligation or responsibility, express, implied or by appearances, on behalf of Seller or in Seller’s name, except as herein expressly provided. Nothing stated in these terms and conditions will be construed as constituting Buyer and Seller as partners or as creating the relationships of employer/employee, franchisor/franchisee or principal/agent between the parties. Buyer will make no warranty,guarantee or representation, whether written or oral, on Seller’s behalf.
- Notices. Notices provided under these Terms and Conditions shall be given in writing and will be deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission.
- Miscellaneous. In the event that any of these Terms and Conditions is determined to be unenforceable, the other Terms and Conditions shall remain in full force and effect. Failure of Seller to enforce at any time any of the Terms and Conditions shall not be deemed a waiver of any of Seller’s rights and shall not effect the validity of any of the Terms and Conditions. All rights and remedies of Seller hereunder are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. The paragraph headings herein are included for convenience only, and shall form no part of the terms and conditions of sale nor affect their interpretation.
- General. These Terms and Conditions, as published on Seller’s Website at the time of sale, are the official terms and conditions of sale between Seller and Buyer and may be amended from time to time without notice at Seller’ s sole discretion.
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