VINE VALLEY VENTURES LLC, DBA ASTRAPOUCH NORTH AMERICA
CONDITIONS OF SALE
Acceptance of Order – Product, quantity, delivery date, price and all other terms are not binding upon Vine Valley Ventures LLC (known hereinafter as “Seller”) until agreed to by the Seller in writing.
Prices – Prices specified herein are subject to change without notice. Merchandise will be billed at Seller’s current price on day of shipment. If the sale of any goods listed herein is or hereafter becomes subject to sales, use or processing tax, the Buyer shall be liable for and pay the same upon payment of invoice. A quotation by Seller with respect to pricing and terms shall not constitute a fixed offer. Seller expressly reserves the right to withdraw or amend the same at any time prior to Seller’s confirmation and acceptance of an order from Buyer.
Standing Orders, Cancellations, Returns– No changes will be effective unless accepted by Seller in writing at Seller’s sole discretion. Orders in process are not subject to cancellation, deferment of delivery or changes in specifications. No claim shall be allowed nor credit given for goods returned without Seller’s prior written consent which may be withheld in Seller’s sole discretion.
Delivery – All shipments within continental United States are FOB Seller’s plan, freight designated by Seller as prepaid, invoiced or collect. Delivery to carrier shall constitute delivery to Buyer and Buyer assumes the risk of loss as of the date of such delivery. Shipping dates are approximate only and subject to change by Seller or carrier. Seller shall not be liable for damages or delays in shipments. Buyer may specify that Buyer’s carrier be used at time of order placement provided Buyer engages such Carrier.
Order Packaging – Method of packaging of order for shipment will be Seller’s choice using best practices unless explicitly directed at order placement by Buyer and accepted by Seller in its discretion.
Over Production and Under Production – Over production and under production of ten percent (10%), unless otherwise specified on the Quote or Invoice, shall constitute fulfillment of all orders.
Suspension of Credit – Seller may suspend credit and shipment of goods ordered until prepaid when, in its sole discretion, the financial condition of Buyer warrants such action.
Limited Warranty — Seller warrants to Buyer that for a period of thirty (30) days from the date of shipment that the product shipped to Buyer will be of merchantable quality and will conform to Seller’s specifications. All claims by Buyer for defects whether patent or latent shall be barred and waived unless Buyer gives written notice of such defects to Seller within thirty (30) days of the date of receipt of goods by Buyer or Buyer’s agent. When defects of a part of delivered products occurred, Seller has the right to inspect and remedy the alleged defects. Buyer shall grant Seller a reasonable grace period in which Seller may remedy the defective product, if such defect actually exists. All statements, technical information and recommendations concerning the products sold or the samples provided by Seller are based upon tests believed to be reliable but do not constitute a guarantee or warranty. Buyer acknowledges that all products are sold and examples provided on the basis that it is Buyer’s sole and absolute responsibility independently to determine prior to use that the products are suitable for the purposes of Buyer.
EXCEPT AS EXPRESSLY PROVIDED HEREIN ALL IMPLIED WARRANTIES AND CONDITIONS WHETHER STATUTORY OR OTHERWISE ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE GOODS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS. SELLER’S AGGREGATE LIABILITY TO PURCHASER WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE SHALL IN NO CIRCUMSTANCE EXCEED THE COST OF THE ALLEGED NON-CONFORMING DAMAGED OR UNDELIVERED PRODUCTS WHICH GIVE RISE TO SUCH LIABILITY AS DETERMINED BY THE NET PRICE INVOICES TO PURCHASER IN RESPECT OF ANY OCCURANCE OR SERIES OF OCCURANCES. UNDER NO CIRCUMSTANCES SHALL BUYER BE ENTITLED TO CLAIM CONSEQUENTIAL DAMAGES, PROSPECTIVE PROFITS OR SPECIAL, INCIDENTAL OR INDIRECT DAMAGES. FURTHER, SELLER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR LOSS PROFITS OR SPECIAL OR INDIRECT DAMAGES OR ANY PROFITS CONTEMPLATED WITH RESPECT TO THE USE OF SUCH GOODS BY BUYER. SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES BY REASON OF BUYER’S INABILITY TO OBTAIN SUBSTITUTE GOODS IN THE OPEN MARKET. THESE LIMITATIONS ON DAMAGES AGAINST SELLER SHALL APPLY TO ANY DEFAULT OR BREACH BY SELLER INCLUDING THE BREACH OF ANY WARRANTY OR ANY TORT COMMITTED BY SELLER. BUYER HEREBY EXPRESSLY WAIVES ANY CLAIM FOR PUNITIVE DAMAGES.
Indemnification—Buyer shall defend, indemnify and hold harmless Seller from and against any and all claims, losses, liability, expenses (including without limitation reasonable attorney’s fees) arising from injury to person or property in any way related to the goods sold unless caused by the gross negligence or willful act of Seller.
Buyer’s Default – In the event of default by Buyer, Seller shall have the right at all times to obtain possession of goods sold wherever such goods are located without prejudice to Seller’s right to compensation from Buyer in connection with Buyer’s default. In addition to the rights and remedies of Seller as set forth in these terms of sale, Seller shall have such other rights and remedies as may be available to it under the New York Uniform Commercial Code. Such rights and all other rights and remedies shall be cumulative.
Intellectual Property – The sale and delivery of goods by Seller to Buyer does not constitute a sale or delivery of any right in the pattern design, label, copyright or proprietary marks of Seller or Seller’s licensors. Buyer shall not use the proprietary marks of Seller or Seller’s licensors except with the specific written permission of Seller.
Waiver Provisions — No waiver by either party of any default shall be deemed a waiver of any subsequent default. Any replacement or adjustment of a delivery shall cure any defaults with respect to that delivery and any defaults so cured shall be deemed to not have occurred.
Assignment – No rights of Buyer under or arising out of any contract with Seller may be assigned without the express written consent of Seller.
Governing Provisions – If any of these terms and conditions conflict with the terms and conditions purportedly specified by Buyer, then the acceptance of Buyer’s order is made only upon the express understanding of any condition at the terms and conditions herein shall govern and control the contract between Buyer and Seller irrespective of whether Buyer accepts these terms and conditions by written acknowledgement, by implication or by acceptance of or payment for the goods ordered hereunder. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of or a modification to any or all of the standard terms and conditions of sale as expressed herein.
Force Majeure — Seller shall not be liable for its failure to perform any of its obligations hereunder during any period in which such performance is delayed or made impossible by Force Majeure including but not limited to fire, flood, war, embargo, riot, labor, unrest, strikes or the intervention of any governmental authority.
Applicable Law – The contract shall be construed in accordance with the laws of the State of New York with exclusive jurisdiction being in the courts of Monroe County New York subject to the mandatory Arbitration provisions below.
Dispute Resolution – Any and all matters in question arising out of or relating to the sale of Seller’s products, the alleged breach thereof, or in any way relating to the subject matter of the agreement or any related agreement involving Buyer and Seller shall be resolved and decided by binding arbitration pursuant to the Federal Arbitration Act in accordance with the commercial arbitration rules of the American Arbitration Association and shall be conducted in Monroe County, New York and will apply New York State law exclusive of its conflict of laws rules.