THESE PURCHASE AND SALE TERMS (these “Terms”) are made and entered into as of the date provided in the signature lines below (the “Effective Date”) by and between Refined Wellness, a Florida limited liability company, (the “Seller”) and the individual or entity purchasing, receiving, or otherwise accepting the Goods (the “Buyer”). Buyer and Refined Wellness shall be referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, Refined Wellness is in the business of selling wellness supplies;
WHEREAS, Buyer desires to purchase, receive, or accept the goods listed on any such purchase order, invoice, or quote between the Parties (the “Goods”);
WHEREAS, the Parties desire to enter into these Terms to set forth the terms and conditions of the purchase and sale of such goods.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto covenant and agree as follows:
Purchase Orders; Pricing; Payment.
(a) Purchase Orders. Buyer shall order Goods in accordance with the terms and conditions of these Terms. Orders for the purchase of Goods (“Purchase Orders”) must be submitted to Seller and shall be in the form substantially set forth attached hereto as Exhibit “A.” Each Purchase Order shall specify (i) the quantity of Goods being ordered, (ii) prices for the Goods, (iii) payment terms granted by Seller, and (iv) a receipt date. Receipt dates must be during the Term, except Buyer may request, and Seller may elect to accept in its sole discretion, a Purchase Order with a requested receipt date after the expiration of the Term, in which case the terms and conditions of these Terms shall apply to such shipment, but under no circumstances should such shipment be deemed to be or construed as being a renewal or extension of these Terms.
(b) No Conflicting Terms. The Parties agree that these Terms shall prevail over any conflicting terms and conditions in any Purchase Order, or any other instrument or document provided by the Buyer. Any additional or different terms or conditions in any Purchase Order or other instrument or submission from the Buyer shall be deemed objected to by Seller without the need of any further or additional notice of objection, and such additional or different term shall be of no effect or in any way binding upon Seller.
(c) Acceptance of Purchase Orders by Seller. Purchase Orders are subject to written acceptance by an authorized representative of Seller. Purchase Orders submitted by Buyer hereunder shall not be binding on the Seller until the earlier of written acceptance by Seller or shipment. Acceptance by shipment shall only be binding as to the portion of the Purchase Order actually shipped by Seller and shall only be subject to the terms and conditions listed herein. Any automatic or computer-generated response to a Purchase Order by Seller’s automated response system or otherwise shall not be deemed acceptance of a Purchase Order. Notwithstanding the foregoing, Seller reserves the right to refuse, cancel or delay any Purchase Order placed by Buyer and accepted by Seller when Buyer is delinquent in payments or when Buyer has failed to perform any of its material obligations under these Terms.
(d) Pricing; Payment. The price to be paid by Buyer shall be that contained on the Purchase Order, if accepted by Seller. Buyer shall pay for the Goods at the time and place of delivery, or as otherwise agreed in writing by Seller. Payment for the Goods shall be made in cash or by certified check, or as otherwise agreed in writing by Seller. The price for the Goods covered by these Terms excludes all transportation costs, freight, insurance and special handling and packaging, or any required federal, state, or local sales or other taxes (except for taxes based on Seller’s net income), duties, export or custom charges, VAT charges, brokerage, or other fees, for which costs Buyer shall be fully responsible. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller’s prior, express written approval.
(e) Late Payment Penalty. In addition to the above sums, if any payment is not timely made by the due date, in addition to the sum due there shall be a late payment penalty due in an amount equal to eighteen percent (18%) of the payment due for each day after the date due through and including the date paid.
(a) Delivery; Title and Risk of Loss. All Goods acquired by Buyer under these Terms delivered or picked up as provided in the applicable Purchase Order, as accepted by Seller and risk of loss of the Goods will pass to the Buyer upon pickup from the Seller’s warehouse or upon the moment such Goods leave Seller’s warehouse for shipping.
(b) Buyer’s Right of Inspection. Buyer shall have the right to inspect the Goods at the time and place of delivery before paying for or accepting them.
(c) Seller’s Right to Delay or Cancel. The Parties agree that any stated delivery dates are approximate, and that delivery of any Goods ordered from Seller under these Terms may be delayed for a period of time sufficient to allow Seller to procure the Goods for Buyer. The Parties further agree that Seller shall not be held liable to Buyer or any other party for any losses, damages, penalties, or expenses for any delay in delivery of the Goods. Notwithstanding any other terms contained in these Terms, Seller reserves the right to refuse, cancel or delay any shipment to Buyer if any amounts due to Seller from Buyer for any reason become past due, when payment for a shipment has not been arranged to Seller’s reasonable satisfaction, or when Buyer has failed to perform any of its material obligations under these Terms. Such refusal, cancellation or delay of any shipment shall not be deemed a breach or default of these Terms by the Seller.
(d) Insufficient Quantities; Patents. If for any reason, the quantities of the Goods or of any materials used in the production of the Goods reasonably available to Seller shall be less than Seller needs for its own use and for sale, Seller may allocate its available supply of Goods among its other existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner as Seller deems proper in Seller’s sole discretion, without thereby incurring liability with Buyer on account of the method of allocation determined or Seller’s implementation or for failure to perform these Terms. Seller reserves the right to discontinue deliveries of any Goods if, in Seller’s opinion, the manufacture, sale or use of the Goods would infringe upon any U.S. patent, trademark or design now or hereinafter issued, registered, or existing and under which Seller is not licensed.
Disclaimer of Express and Implied Warranties. Seller warrants that the Goods are as described in these Terms, but no other express warranty is made with respect to the Goods. If any model or sample was shown Buyer, that model or sample was used merely to illustrate the general type and quality of the Goods and not to represent that the Goods would necessarily conform to the model or sample.
THE GOODS SOLD UNDER THESE TERMS ARE PURCHASED BY THE BUYER “AS IS” AND SELLER DOES NOT PROVIDE ANY WARRANTY FOR THE GOODS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES THAT THE GOODS ARE OF MERCHANTABLE QUALITY OR THAT THE GOODS CAN BE USED FOR ANY PARTICULAR PURPOSE.
Buyer acknowledges that it has not been induced by any statements or representations of any person with respect to the quality or condition of the Goods and that no such statements or representations have been made. The Buyer acknowledges that it has relied solely on the investigations, examinations, and inspections as the Buyer has chosen to make and that the Seller has afforded the Buyer the opportunity for full and complete investigations, examinations, and inspections.
Limitation of Liability; Actions. IN NO EVENT SHALL SELLER BE LIABLE UNDER THESE TERMS TO THE BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THE LIABILITY OF SELLER, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THESE TERMS, REGARDLESS OF LEGAL THEORY, SHALL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE GOODS WITH RESPECT TO WHICH SUCH CLAIM IS MADE.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THESE TERMS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
Compliance with Laws. Buyer represents, warrants, and covenants that it shall comply with all applicable international, national, state, regional and local laws, and regulations in performing its duties hereunder and in any of its dealings with respect to the Goods. Buyer acknowledges and understands that the Goods may be subject to restrictions upon export from the United States and upon resale after export. Buyer therefore represents and warrants that it shall comply fully with all relevant regulations and import and/or export control laws of the United States.
Intellectual Property. Buyer acknowledges that Seller or Seller’s suppliers is/are the owner of intellectual property related to the Goods (the “Marks”) and proprietary color and patterns used in connection with the Goods (the “Copyrights”). Buyer shall not use the Marks or Copyrights or any part thereof as part of Buyer’s name, nor register any name, including domain names, or mark confusingly similar to the Marks or Copyrights. Buyer acknowledges that it is not being licensed any right or interest of any kind in the Marks or Copyrights and that Buyer may not use same without the prior, written consent of Seller.
Authority of Seller’s Agents. No agent, employee, or representative of Seller has any authority to bind Seller to any affirmation, representation, or warranty concerning the Goods sold under these Terms. Unless an affirmation, representation, or warranty made by an agent, employee, or representative of Seller is specifically and expressly included within these Terms, it does not constitute a part of the basis of the bargain between the Parties and shall not in any manner be enforceable.
Governing Law and Venue. These Terms will be governed by and interpreted in accordance with the laws of the State of Florida, without giving effect to the principles of conflicts of law of such state. The UN Convention on Contracts for the International Sale of Goods (i.e. the CISG) shall not apply to these Terms. The Parties hereby agree that any action arising out of these Terms will be brought solely in any state or federal court located in Miami-Dade County, Florida. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THESE TERMS.
Attorney’s Fees. If either Party incurs any legal fees associated with the enforcement of these Terms or any rights under these Terms, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
Force Majeure. Seller shall not be liable hereunder for any failure or delay in the performance of its obligations under these Terms, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accidents, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, quarantines, or acts of God, in addition to any and all events, regardless of their dissimilarity to the foregoing, beyond the reasonable control of the Seller, for so long as such force majeure event is in effect and for a reasonable period thereafter. Financial or economic hardship on the part of the Buyer shall not constitute a force majeure event. The Parties shall endeavor to provide the other Party with notice of the occurrence of such an event within five (5) business days of its occurrence.
Headings; Construction. The headings and captions appearing in these Terms have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit, or extend the scope or intent of the provisions to which they appertain. These Terms is the result of negotiations between the Parties and their counsel. Accordingly, these Terms shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
Severability. If any provision or portion of these Terms shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
Notices. All notices or other communications required under these Terms shall be deemed effective when received and made in writing by either (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) overnight mail, addressed to the Party to be notified at the address provided in the signature lines herein or to such other address as such Party shall specify by like notice.
Authorized Signatories; Counterparts. It is agreed and warranted by the Parties that the individuals singing these Terms on behalf of the respective Party are authorized to execute such an Agreement. No further proof of authorization shall be required. These Terms may be executed by facsimile and in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others.
Modification; Waiver. These Terms may be modified only by a written amendment signed by authorized representatives of both Parties. No waiver of any term or right in these Terms shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of these Terms shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter.
Ambiguities. Ambiguities, if any, in these Terms shall not be construed against any Party, irrespective of which Party may be deemed to have authored the ambiguous provision.
Return Policy. Subject to the requirements of this Agreement, Buyer may return the Goods within thirty (30) days of receipt. However, Refined Wellness reserves the right to charge Buyer a restocking fee in the amount of twenty percent (20%) of the MSRP of the Goods returned. No returns will be accepted after the thirty (30) day period has expired. Buyer shall be responsible for all shipping and handling costs for the return of the Goods.