TERMS AND CONDITIONS OF SALE
GENERAL. The terms and conditions on this form (“Terms”) constitute the entire agreement between GlowByErin LLC (“Seller”) and Buyer, and all sales by Seller of the products described in the Purchase Order (the “Product(s)”) are expressly conditioned upon these Terms. These Terms supersede all prior negotiations, communications, purchase orders and/or statements. These Terms may in some instances conflict with those of the Buyer's purchase order or other order. If so, such terms not in conformance with these Terms are rejected and these Terms shall govern. Acceptance of Buyer's order is expressly conditioned upon Buyer's acceptance of or assent to these Terms, which shall be established by a written acknowledgment, by implication, or by acceptance or payment for the Product. Seller's failure to object to provisions contained in any communication from Buyer shall not be deemed an acceptance of such provision or a waiver of these Terms. Any changes in these Terms must specifically be agreed to in writing and signed by an officer of Seller before becoming binding. If any authorized change affects cost or timing, Seller shall adjust the purchase price and delivery schedules accordingly. Retention by Buyer of any Products sold hereunder shall be conclusively deemed acceptance of these Terms.
PAYMENT. The prices reflected in the Purchase Order are based on US Dollars. Seller shall render invoices for the Product at the time of delivery or as otherwise shown in this Purchase Order. Payment shall be due and payable as set forth in the Purchase Order. Buyer’s failure to make such payment when due shall be a breach of this Agreement. Amounts not paid in accordance with the Purchase Order shall be considered in default, and a charge of 2% per month may be assessed. Seller shall separately state on all invoices any taxes imposed by federal, state or local governments applicable to furnishing the Product.
DELIVERY. Delivery will be arranged at the time the order is placed; however, the scheduled delivery date is approximate and is based upon receipt of all necessary information to enable order entry. Delivery shall be made to the address stated on the Purchase Order. All orders are accepted with the understanding that Seller shall not be responsible for delays or non-performance caused by strikes, fires, riots, sabotage, government, war or any other causes beyond our control. Seller reserves the right to ship (at Buyer’s expense and in accordance with Seller’s standard shipping policies) all orders scheduled for designated pick-up, which are not retrieved by Buyer (or it’s agent) within forty-eight (48) hours of the scheduled designated pick-up date.
LIMITED WARRANTY. Seller warrants: (i) title to the Product will be free and clear of security interests, liens, and claims; and (ii) that the Product shall be delivered free from the rightful claim of any person by way of patent or trademark infringement. Seller’s warranties on the Product shall remain in effect twelve (12) months from the delivery date. In addition, and to the extent legally and contractually permissible, Buyer shall have the benefit of any warranty extended by the manufacturer of the Product.
DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPH 5 ABOVE, THE PRODUCT SOLD HEREUNDER IS PROVIDED “AS-IS”, “WHERE-IS” AND SELLER DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY. Seller shall not be liable for lost profits, incidental, special, consequential or punitive damages resulting from any breach of warranty or condition, or under any other legal theory. Seller’s entire liability on any claim of any kind for any loss or damage arising out of or in connection with this contract shall not exceed the price allocable to the particular goods which gives rise to the claim. Any action resulting from any breach on the part of Seller as to the Product delivered hereunder must be commenced within one year after the cause of action has accrued.
7. RESTRICTION ON RESALE. The Product sold hereunder is intended for Buyer’s personal use and/or in association with services performed by Buyer for third parties only and not resale. Buyer shall not repackage, resell or otherwise provide the product to third parties except in the provision of services at Buyer’s place of business.
8. COMPLIANCE WITH LAWS; PERMITS: In the performance of this Purchase Order and in every action in connection therewith, Buyer and Seller shall comply fully with all applicable federal, state and local laws, ordinances, rules, regulations and orders, including obtaining or complying with all necessary permits and licenses, and shall be responsible for all costs and fees associated therewith. The parties agree to hold one another harmless from any and all liabilities, claims, fines or penalties (including reasonable costs and settlements) which may arise out of the failure of such party to comply with the requirements as set forth in this section.
9. INTELLECTUAL PROPERTY.
A. Seller retains all right, title, and interest to any and all intellectual property rights associated with the Product including but not limited to patents, trademarks, copyrights, and trade secrets, whether such rights are registered or unregistered (“Seller’s Intellectual Property”).
B. Buyer acknowledges and agrees that: (i) Seller’s Intellectual Property is the sole and exclusive property of Seller; (ii) Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property under this Agreement; (iii) Buyer shall use Seller’s Intellectual Property solely for purposes of using the Product under this Agreement and only in accordance with this Agreement and the instructions of Seller; and (iv) if Buyer acquires any intellectual property rights, rights in or relating to the Product (including any rights in any trademarks, derivative works, or patent improvements relating thereto) by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller, without further action by either of the parties.
C. Buyer shall not or allow any third party to: (i) take any action that might interfere with any of Seller’s rights in or to Seller’s Intellectual Property, including Seller’s ownership or exercise thereof; (ii) modify, translate, adapt, or otherwise create or allow the creation of derivative works or improvements, whether or not patentable, of Seller’s Intellectual Property; (iii) reverse engineer any portion of Seller’s Intellectual Property; (iv) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products sold hereunder or Seller’s Intellectual Property; (v) misappropriate any of Seller’s trademarks for use without prior written consent from Seller; or (vi) alter, obscure or remove any Seller's trademarks or copyright notices or any other proprietary rights notices placed on the products, marketing materials or other materials that Seller may provide.
10. CHOICE OF LAW. These Terms shall be interpreted and enforced in accordance with the laws of the state of Oklahoma, without reference to its conflict of laws rules. Any dispute which arises under these Terms, or otherwise as a result of Seller’s provision of products to Buyer, shall be litigated exclusively in the state or federal courts located in the city of Tulsa, Oklahoma and Buyer expressly waives any and all objections to jurisdiction and venue of any such action in Tulsa, Oklahoma.
11. INDEMNITY. Seller shall defend, indemnify, and hold Buyer harmless from and against all claims, demands, and suits arising out of any alleged liability for or on account of any claimed or actual infringement or contributory infringement of any patent, or infringement of any copyright or trademark or violation of any trade secret by any and all of the Product and sale hereof and use of the same for their ordinary intended purposes except to the extent of any misuse, mishandling, or modification of the Product. Buyer shall defend, indemnify, and hold Seller harmless from and against all claims, demands, and suits arising out of any alleged liability for or on account of any negligence of the Buyer or misuse of the Product by Buyer.
12. NO RETURNS. Subject to Section 4, due to the nature of the Product, Seller is not obligated to accept any returns of the Product or grant any refund to Buyer, regardless of whether or not the Product remains in its original packaging.
13. RISK OF LOSS. Unless otherwise specified in the Purchase Order, Seller shall be responsible of the delivery of the Product and the risk of loss to the Product purchased hereunder shall pass from Seller to Buyer at the specified delivery point.
14. CONFIDENTIALITY. Buyer and its directors, officers, employees, and agents shall not disclose to any third party any nonpublic information pertaining to the Product, or pertaining to Seller’s business or operations.
15. RIGHTS AND REMEDIES; WAIVER. The rights and remedies herein contained shall be cumulative and additional to any other rights and remedies provided in law or equity. No failure by Seller to enforce at any time any of the terms or conditions of this Purchase Order shall constitute a waiver thereof or in any way impair Seller’s right at any time to avail itself of such remedies as it may have to enforce such terms or conditions. In the event of any breach by Buyer hereunder, Buyer shall be liable for reasonable attorney’s fees incurred by Seller, as well as any damages resulting from that breach.