Terms and Conditions
These terms and conditions of sale (these “Terms“) govern the sale of the goods (“Goods“) by DLVEWS, Inc. (“Seller“) to any customer (collectively and individually referred to herein as “Buyer“). Sale of any Goods is expressly conditioned on Buyer’s assent to these Terms and Conditions. Any acceptance of Seller’s offer is expressly limited to acceptance of these Terms and Conditions and Seller expressly objects to any additional or different terms proposed by Buyer. No Buyer form shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Any order to purchase Goods shall constitute Buyer’s assent to these Terms and Conditions.
The accompanying invoice (the “Invoice”) and these Terms (collectively, this “Agreement“) comprise the entire Agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Delivery and Shipping. Seller shall coordinate delivery of the Goods to Buyer, from the manufacturer, F.O.B. place of shipment. Buyer shall pay all delivery costs and charges or pay Manufacturer’s standard shipping charges plus handling. Seller may, in its sole discretion, without liability or penalty, instruct the manufacturer to make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. Delivery times are approximate and are dependent upon (i) prompt receipt by Seller of all information necessary to proceed with the order and (ii) product availability from the manufacturer.. If Goods delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller within ten (10) days after receipt. Any liability of Seller for non-delivery of the Goods shall be limited to the seller coordinating replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Security. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Maine Uniform Commercial Code.
Amendment and Modification. This Agreement may only be amended or modified in a writing that expressly states that it amends this Agreement and is signed by an authorized representative of both Seller and Buyer.
Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within 1 Business day of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) Goods shipped are different than those identified in Buyer’s purchase order; (ii) Goods are damaged; or (iii) the Goods’ label or packaging incorrectly identifies the Goods. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to the manufacturer. If Seller and manufacturer exercise their option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, coordinate the shipping of conforming Goods to Buyer, at Buyer’s expense and risk of loss, FOB point of shipment. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
Payment Terms. Payment terms and interest are as noted on the invoice. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, or for otherwise enforcing this Agreement, which costs shall include, without limitation, reasonable attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 7 days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
Limited Warranty. Seller assigns and passes through to Owner any express warranties from manufacturers of the goods. EXCEPT FOR THE ASSIGNMENT AND PASS-THROUGH OF MANUFACTURER’S WARRANTIES, IF ANY, SET FORTH IN HEREIN, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, EXPRESS OR IMPLIED, INCLUDING, WIHTOUT LIMITATION, ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by a “Force Majeure Occurrence.” A “Force Majeure Occurrence” shall mean an occurrence beyond the control and without the fault or negligence of Seller and against which the Seller is unable to prevent or provide through reasonable diligence. Force Majeure Occurrences shall include, without limitation: acts of God or nature (including, without limitation, fire, flood, earthquake, explosion, storm, hurricane, or other natural disaster, or pandemics), governmental action, wars, terrorist acts, military or other usurped political power or confiscation, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown, or prolonged failure of electricity or other vital utility service.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law. All matters arising out of or relating to this Agreement are governed by and shall be construed in accordance with the internal laws of the State of Maine without giving effect to any choice or conflict of law provision or rule (whether of the State of Maine or any other jurisdiction) that would result in the application of the laws of any jurisdiction other than those of the State of Maine.
Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the state or federal courts located in the State of Maine, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding
Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Invoice or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), email (with confirmation of receipt), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Agreement is deemed invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.