In these terms and conditions of sale, Dave & Adam’s Card World, LLC is referred to as “Seller” and the party to whom Seller’s quotation is addressed is referred to as “Buyer”. All sales of Seller are subject to the following terms and conditions. Any purchase order or other communication from Buyer that contains terms and conditions in addition to or inconsistent with the following will not be binding upon Seller unless acceptance of those terms and conditions is made in writing by an authorized representative of Seller. Failure of Seller to object to provisions contained in any purchase order or other communication from Buyer will not be construed as a waiver of these terms and conditions nor an acceptance of any such provisions. Seller’s quotation, these terms and conditions and Seller’s order acknowledgment constitute the entire agreement between Buyer and Seller with respect to the sale of Seller’s products, and supersede all oral and written proposals, representations, understandings and agreements previously made or existing with respect to the sale of Seller’s products. Seller’s quotation, these terms and conditions and Seller’s order acknowledgment are governed by and must be construed according to the laws of the State of New York without reference to the laws of any other jurisdiction. Any action or proceeding relating to the sale of Seller’s products must be commenced and will remain in New York State Supreme Court, Erie County, or in the United States District Court for the Western District of New York and Buyer consents to the jurisdiction of such courts.
Written quotations automatically expire 30 days from the date issued unless otherwise specified in the quotation. A verbal quotation expires on the day that it was made. All quotations are subject to the terms and conditions of Seller’s regular form of order acknowledgment and the terms and conditions described in this document. All quotations, to be binding, must list the actual quantities required.
Acceptance of Orders.
Orders become effective only when accepted by Seller’s written order acknowledgment. To avoid delay, new Buyers should include credit information or references with their first order, or remit cash. Transportation costs must not be deducted from the selling price.
All proprietary design and know-how and/or trade secrets or product information including, without limitation, all improvements, developments or modifications (“Intellectual Property”) is and at all times shall remain owned by the Seller and Buyer will have no right to use such Intellectual Property.
If Buyer cancels or repudiates Buyer’s obligations under an order, or Seller terminates its performance because of Buyer’s failure to perform in accordance with the these terms and conditions, Buyer shall pay to Seller the price of the products covered by the order, or for any such products as to which an action for the price is not permitted by law, damages equal to the profit (including reasonable overhead) which Seller would have received had Buyer fully performed, or, at Seller’s option, 25% of the price of such products as liquidated damages, plus, in the case of special orders, Seller’s expense, if any, incurred prior to receipt by Seller of notice of non-acceptance, rejection, repudiation or cancellation by Buyer or termination by Seller, in connection with providing special services, purchasing special supplies and the like.
Shipping dates are estimated. If the Buyer delays in supplying information necessary to proceed with an order, the estimated date of shipment may be extended by Seller accordingly. Seller is not liable for late shipments. Any penalty clause for failure to meet shipment dates is not binding upon Seller unless specifically approved in writing by an officer of Seller. If Buyer causes a delay in shipment, Seller may invoice Buyer and hold the products at Buyer’s risk, cost and expense pending Buyer’s instructions.
All payments are due prior to shipment of orders, unless otherwise specifically agreed to in writing by Seller. If Buyer defaults in any payments when due, Seller reserves the right to defer delivery or cancel the order, without prejudice to its other lawful remedies. In the event Seller engages the services of an attorney to collect such overdue amounts, Buyer agrees to pay the attorney’s fees and disbursements. Seller reserves the right to ship its order and make collection by sight draft with bill of lading attached or on a C.O.D. basis or any other terms. A finance charge of 1½% per month, which is an annual percentage rate of 18%, will be charged on all past due accounts.
Taxes and Other Charges.
Buyer will pay any retailer’s occupation tax, use tax, sales tax, duty, custom inspection or testing fee, or any other tax, fee or charge of any nature whatsoever, imposed by any government authority, on or measured by any transaction between Seller and Buyer.
Freight; Title and Risk of Loss.
Unless otherwise specified in writing, all prices quoted are F.O.B. Seller’s warehouse, no freight allowed. Title and risk of loss pass to Buyer upon delivery to carrier.
Acceptance and Return of Products.
Buyer’s receipt of any products delivered hereunder shall be an unqualified acceptance of, and a waiver by Buyer of its right to make any claim with respect to such product. Any product returns are subject to Seller’s Return Policy.
Seller warrants its products are of the type and quantity specified on the purchase order or invoice. Any claims for defective products will be subject to Seller’s Return Policy. This is Buyer’s sole remedy for defective products. This warranty does not apply to any product that has been altered, used contrary to Seller’s instruction, subjected to misuse, improperly stored, or is damaged by accident or negligence. THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THERE ARE NO OTHER WARRANTIES THAT EXTEND BEYOND THIS EXPRESS WARRANTY.
Limitation of Liability.
Seller will not be liable for damages to products, other property or persons due to improper use, storage or use after recommended time. SELLER WILL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY SPECIAL, CONTINGENT, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. Seller’s liability with respect to a claim for any other damages arising out of or connected with the sale, purchase, non-delivery, use or performance of any product sold by Seller will in no event exceed the price paid for the product. Any claim by Buyer or any third party related to any products sold hereunder must be brought within thirty (30) days of the date of sale of the products giving rise to such claim.
Seller shall not be liable for its failure to perform hereunder if said performance is made impracticable due to any occurrence beyond its control, including without limitation acts of God, fires, floods, wars, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances, rules and regulations, whether valid or invalid (including, but not limited to, priorities, requisitions, allocations, and price adjustments), inability to obtain raw material, equipment or transportation, and any other similar or different occurrence. Seller shall have the right to omit during the period of such occurrence all or any portion of the quantity deliverable during such period, whereupon the total quantity deliverable hereunder shall be reduced by the quantity so omitted. In no event shall Seller be obligated to purchase material from others in order to enable it to deliver material to Buyer.
If Seller is made a party to any proceeding, action or arbitration related to or arising out of the sale or use of any products, on the basis of breach of warranty, negligence, strict liability, tort or otherwise, by Buyer, or any persons deriving title from Buyer, or any third party, unless it shall be determined that Seller was solely and grossly negligent or solely at fault, then Buyer will indemnify and hold Seller harmless for all damages, costs and expenses in connection with such proceeding, action or arbitration, including attorneys fees.
Termination; Other Provisions.
These terms may not be modified or amended except by an agreement duly signed by the parties. Buyer may not assign any of its rights under these terms without the prior written consent of Seller. Any assignment of these terms shall be void and be grounds for immediate termination of any obligation of Seller to Buyer. Seller may also immediately terminate any obligation to Buyer if: Buyer fails to make any payment by the due date or to accept delivery of any products ready for delivery; any petition or proceeding shall be filed or instituted by or against Buyer under any bankruptcy, reorganization or similar law; Buyer becomes insolvent or unable to pay its debts as they mature or suspends its operations; or Seller has reasonable grounds for insecurity as to Buyer’s performance of its obligations to Seller, and Buyer fails to provide Seller adequate assurance of Buyer’s performance within 30 days of Seller’s demand. No failure by Seller to enforce at any time any provision of these terms shall be construed as a waiver of Seller’s right to act or to enforce each and every provision of these terms. In the event of (a) breach by Buyer of any provision of these terms, (b) Buyer’s cancellation of this contract, or (c) termination by Seller of its obligations in accordance with the terms of these terms, without limitation of any other rights and remedies of Seller, Seller may retain any deposit provided by Buyer or draw on any letter of credit issued to Seller.