TERMS AND CONDITIONS OF SALE
These Terms and Conditions shall apply to sales of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless this has been agreed to by the Seller in writing. Any variation to these Terms and Conditions (including any special terms and conditions agreed to between the parties) shall be inapplicable unless agreed in writing by the Seller.
In this document the following words shall have the following meanings:
"Buyer" means the organization or person who buys the Goods;
"Goods" means the articles to be supplied to the Buyer by the Seller;
"Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property;
"Seller" means Spiritus Systems Company, Inc., a North Carolina corporation.
II. PRICE AND PAYMENT
The price shall be the Recommended Retail Price, unless otherwise agreed in writing between the parties. The price is exclusive of VAT or any other applicable costs, sales tax, excise tax, or use tax.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
Unless otherwise agreed in writing, the goods shall be shipped to the address specified by the Buyer on the date estimated by Seller, or as close as possible to the date estimated by Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Seller is responsible only for delivering the goods to the carrier for shipment. The risk of loss shall pass to the Buyer when the goods are delivered to the carrier. This contract shall be F.O.B. Seller’s place of business. Shortages, over deliveries, and duplicated orders must be reported to the Seller within 14 days of signed receipt to enable replacement or refund.
Where the Buyer chooses to collect the Goods itself, the risk shall pass when the Goods are entrusted to the Buyer or set aside for the Buyer’s collection, whichever happens first.
Title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods.
VII. RETURN OF UNUSED GOODS
The Seller shall not take back goods that were manufactured by a party other than the Seller, whether defective or not. Products manufactured by outside suppliers and added to Seller’s products are subject to any warranties of the outside supplier and not of Seller. Such goods must be returned to the manufacturer and not the Seller. All goods are sold on a firm sale basis, i.e. the Seller will not take back any goods sold to the Buyer, unless otherwise agreed to by Seller, in which case the following terms apply:
(1) Any returns must be authorized by a representative of the Seller before any credit will be given,
(2) Where the Seller agrees to accept the return of goods that are not damaged, the Buyer will be responsible for the cost of carriage and will ensure that they are carefully packaged to avoid any damage in transit. The Seller will not be obliged to accept any goods that are damaged in any way. The Seller will only accept returns that appear in the Seller’s current Publication List, and
(3) Credit of amounts due or paid in will only be given for goods that are in saleable condition, meaning they are unused and in original packaging. Buyer shall be responsible for a 10% (ten percent) restocking fee, plus transaction fees charged by the merchant service used to complete the transaction.
VIII. RETURN OF DEFECTIVE PRODUCTS
In the event that Seller’s Product is found to be defective ("Defective Product") within ten (10) business days of receipt, Buyer shall promptly notify Seller through e-mail or fax of the existence of such Defective Product. Any Defective Product shall be replaced by Seller at its option. Buyer shall follow Seller’s instructions as to the disposition or return of said product. This policy refers only to product manufactured by Seller and not to any third-party product incorporated into Seller’s product.
IX. LIMITATION OF LIABILITY
SELLER SHALL NOT BE LIABLE UNDER ANY SECTION OF THIS AGREEMENT OR UNDER ANY CONTRACT, IN NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REPUTATIONS), WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS IN ADVANCE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST THE OTHER PARTY. IN NO EVENT WILL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY BUYER. IN ADDITION, IN NO EVENT WHATSOEVER SHALL SELLER'S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY RECEIVED BY SELLER FROM BUYER FOR THE PRODUCT INVOLVED.
EXCEPT AS PROVIDED HEREIN, THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS, WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND. SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE FACE HEREOF. SELLER DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.
XI. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the
absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of
appropriate instruments or the making of agreements with third parties, as determined by the Seller.
XII. FORCE MAJEURE
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
XIV. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of North Carolina and the parties hereby submit to the exclusive jurisdiction of the courts of North Carolina, with such venue exclusively is Moore County, North Carolina.
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