TERMS OF SALE
These standard terms and conditions (these “Terms and Conditions”) of Pour & Penchant LLC (“Seller”) shall bind Seller and its customer, including all affiliates (collectively, “Buyer”) and shall govern all transactions between Seller and Buyer, without exception.
Applicability
By doing business with Seller, each and every Buyer: (i) accepts, agrees and consents to these Terms and Conditions, and (ii) agrees and acknowledges that these Terms and Conditions shall control in the event of any conflict between these Terms and Conditions and any purchase order, contract, agreement, confirmation, invoice, receipt, shipping manifest and other document or instrument submitted by Buyer, including without limitation any email, letter or other communication sent by Buyer to Seller (singularly, “Other Agreement” and collectively, “Other Agreements”). No Other Agreement shall be considered a counteroffer, amendment, modification or rejection of these Terms and Conditions.
Buyer’s receipt and acceptance of any product from Seller constitutes additional confirmation of Buyer’s acceptance of and agreement to these Terms and Conditions and a rejection of any contrary terms put forth by Buyer.
Seller reserves the right to unilaterally modify or amend these Terms and Conditions at any time without prior notice. The current version of these Terms and Conditions supersedes all prior versions of these Terms and Conditions. The most current version of these Terms and Conditions may be found at Seller’s website (www.pourandpenchant.com) and is otherwise available upon request.
No variation of these Terms and Conditions is binding on Seller unless (i) in writing and (ii) signed and dated by Seller’s President.
Orders
Seller reserves the right to reject any order, for any reason or no reason, in Seller’s sole discretion. Any order not rejected by Seller within 05 days of receipt shall be deemed accepted by Seller. Once an order is accepted or deemed accepted by Seller, the order may not be changed or cancelled except by written agreement signed and dated by both Buyer and Seller’s President. Cancelled orders are subject to a cancellation charge equal to the greater of: (i) Buyer’s deposit, (ii) Seller’s cost for any material purchased specially for Buyer’s order, including all shipping and storage costs and cancellation fees incurred by Seller. The cancellation charge is due on demand.
Once an order is accepted by Seller, it may not be assigned or otherwise transferred by Buyer without Seller’s prior written consent, which Seller may withhold in Seller’s sole discretion. No attempted assignment of any order by Buyer shall be deemed valid nor relieve Buyer of its obligation to accept and pay for products ordered.
Delivery, Delays. For sales which are FOB Buyer’s Destination, title and risk of loss or damage transfers to Buyer upon delivery to Buyer’s location. Carriers are chosen by Seller, with packaging and shipping costs [including insurance, tariffs and duties, if any] payable by Buyer unless stated otherwise in the Sales Contract. All sales not identified as FOB Buyer’s Designation in the Sales Contract are FOB Seller’s plant, and title and risk of loss or damage transfers to Buyer once the goods are placed in Seller’s dock. Seller reserves the right, in its sole discretion, to: (i) determine the carrier and method of shipment and (ii) make delivery in lots [unless varied by Sales Contract]. All lots are separately invoiced and due upon receipt unless stated otherwise in the Sales Contract, without regard to subsequent deliveries. Delay in receipt of any individual lot shall not relieve Buyer of Buyer's obligation to accept and pay for remaining lots.
Delivery dates communicated or acknowledged by Seller are approximate only. Unless identified as time of the essence in the Sales Contract, Seller shall not be liable for, nor be deemed in breach as a result of, any delivery made within a reasonable time before or after the anticipated delivery date. Seller agrees to use commercially reasonable efforts to meet the anticipated delivery date[s] in the Sales Contract, provided that Buyer has provided all necessary order and delivery information prior to such delivery date.
Where Seller permits Buyer to pick up product at Seller’s facility, Buyer agrees unconditionally and at Buyer’s sole cost and expense to deliver the product to its final destination. In addition to any other remedy available to Seller, Buyer shall reimburse Seller for the full amount of any allowance granted to Buyer for pick up if the product is not delivered to its final destination when, as, where and how indicated on Sales Contract.
Seller’s performance under any accepted order shall be excused in the event of and to the extent of fire, explosion, flood, severe weather, accident, strike, governmental act, pandemic, embargo, shortage of raw materials or fuel, computer system failure, war or military action, riot, civil disturbance or any other event beyond Seller’s control or which materially and substantially affects the economic basis of the bargain (“Force Majeure”). Seller’s performance in the event of a Force Majeure shall be excused for so long as the cause continues, without liability. If the Force Majeure continues unabated for sixty (60) consecutive days then Seller may, at its option, cancel any order so affected without liability.
Product Allocation. If Seller is unable to fill Buyer’s complete order due to Force Majeure, Seller may allocate its available supply among any or all customers on such basis as Seller may determine in Seller’s sole discretion, without liability for any failure of performance which may result therefrom.
Pricing. Prices contained in any Sales Contract are for the specific products identified therein only. Seller does not agree to hold prices constant or continue pricing on future orders. In the absence of explicit pricing in a Sales Contract, prices applicable are those in effect at the time of Seller’s acceptance of an order.
Shipment will be made promptly even if prices have been nominally increased. Price changes will be automatically applied to Buyer’s invoice.
Payment. Unless stated otherwise in the Sales Contract: (i) terms of sale are net 07 days of date of invoice and (ii) all payments shall be in US dollars in immediately available funds, without set off or deduction. If Buyer’s financial condition or any Force Majeure results in Seller’s insecurity, in Seller’s sole discretion, as to the collectability of the purchase price, Seller may, on written notice to Buyer, delay or postpone delivery of the product unless and until Buyer has paid for the order in full or in part, per Seller’s election.
Delinquent payments shall be subject to post maturity interest charges of three and one-half percent [3.5%] per month or the highest rate permitted by law at the point of delivery.
Upon Buyer’s default, whether in payment or otherwise, of a signed Sales Contract Seller may, at its option, without prejudice to Seller’s other lawful remedies, defer delivery; cancel the order; or sell any undelivered product for Buyer’s account and apply the net proceeds as a credit, without set-off or deduction of any kind, against the purchase price. In such case Buyer agrees to pay the balance then due to Seller on demand.
Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection, including court costs, resulting from any default by Buyer in any transaction with Seller. Buyer shall not be entitled to withhold payment of any amount due to Seller in respect of any claim, whether for damaged product or otherwise; nor shall Buyer be entitled to any right of set-off. Seller reserves the right to require Buyer to pay for product in full in advance if Buyer fails to maintain credit account arrangements satisfactory to Seller.
Taxes and other charges. Buyer shall pay and be solely liable for all sales tax, use tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer. If Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller therefore, on demand; or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
Warranty, Limitation of Liability. Representations regarding the composition and performance of the product are believed reliable, but Seller MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING SUCH INFORMATION OR PRODUCT EXCEPT THAT SELLER WARRANTS IT HAS GOOD TITLE TO THE PRODUCT, AND THE PRODUCT WILL CONFORM TO THEN-CURRENT SPECIFICATIONS AT THE TIME OF DELIVERY. SELLER EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Seller's warranties shall be deemed null and void if Seller determines, in its sole discretion, that Buyer has misused the product in any manner, has failed to use the products in accordance with industry standards, or has failed to use the products in accordance with instructions, if any, furnished by Seller.
Seller's sole and exclusive liability - and Buyer's exclusive remedy - with respect to products proved to Seller’s satisfaction to be defective or nonconforming shall be either:
[a] replacement of such products without charge or [b] refund of the purchase price, in Seller’s sole discretion, upon return of such product at Buyer’s expense and otherwise in accordance with Seller's instructions.
SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE, MISUSE OR FAILURE OF THE PRODUCT, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY INCLUDING DEATH, PROPERTY DAMAGE, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, LOSS OF REVENUE OR PROFITS OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS.
Buyer Indemnification. Buyer shall defend, indemnify and hold Seller and Seller’s agents harmless from and against all third party claims alleging: (i) violation of any third party’s intellectual property, where said claim alleges that a product, product design, product configuration, mark, logo or other intellectual property requested by Buyer infringes the third party’s intellectual property or (ii) fault, liability or damages, whether direct or indirect, arising from the use, misuse or non-use of any product sold or delivered by Seller; and this includes without limitation personal injury or death. Should Buyer fail or refuse to satisfy its obligation herein, Seller may undertake such defense of a claim as determined by Seller in its sole discretion, and Buyer shall reimburse Seller for all costs and expenses incurred by Consultant, including without limitation reasonable attorneys’ fees, court costs and costs of appeal, on demand.
Returns. Product may not be returned for any reason except with Seller's written consent, and then only in strict compliance with Seller's return shipment instructions.
Claims. Claims against Seller in connection with defective or non-conforming product must be made in writing within 5 days of the date of delivery. Claims for over, short and damaged shipments must be made within 5 days of delivery. Any claim made beyond the maximum period permitted is deemed waived by Buyer and may be rejected by Seller. Defective product is subject to inspection and review by Seller prior to adjustment of the claim.
ANY LEGAL ACTION AGAINST SELLER IN CONNECTION WITH A SALE, OR ARISING OUT OF THE RECEIPT, NON-RECEIPT, USE OR MISUSE OF THE PRODUCT, INCLUDING BUT NOT LIMITED TO QUANTITY, PRICE, CONDITION, PROMOTIONAL ALLOWANCES, PRODUCT PERFORMANCE, OR BREACH OF WARRANTY, UNDER ANY THEORY, MUST BE COMMENCED WITHIN ONE (1) YEAR OF THE DATE OF DELIVERY. THEREAFTER, SUCH SUITS ARE BARRED, OTHER STATUTES OF LIMITATIONS NOTWITHSTANDING.
Intellectual Property. Buyer recognizes and acknowledges Seller’s sole ownership of and title to all trademarks, service marks, trade names, patents, copyright and other intellectual property rights on, in or inherent in the product. Buyer will take no action to violate, obliterate, remove, alter, conceal or misuse any such mark, trade name or copyright notice. Buyer agrees that no right, title or interest in any such intellectual property is transferred to Buyer as a result of any delivery of product by Seller. Nor does Seller’s delivery of product to Buyer convey any license, whether implied or otherwise, to Buyer to use Seller’s intellectual property. Buyer will promptly notify Seller if Buyer becomes aware of any infringement of Seller’s intellectual property rights by any third party, and shall provide Buyer’s reasonable assistance to Seller in connection with any resultant proceedings.
Confidential Information. Seller’s obligations of confidentiality and non-use, if any, shall be strictly limited to Buyer’s product specifications and business information. All information received by Buyer from Seller in respect of the Seller’s business shall be deemed to be confidential, and Buyer shall not use or disclose such information without Seller’s express authorization unless it is publicly known (otherwise than by breach of obligation).
Governing Law, Jurisdiction, Venue. All disputes arising out of any transaction between Seller and Buyer shall be: (i) governed by New York law, without regard to conflicts of law and (ii) resolved only in the state or federal courts located in or serving Erie County, New York; and Buyer hereby submits to the jurisdiction of such courts and waives all objections to venue in such courts. The 1980 United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and Conditions.
NOTICE OF FIRE HAZARD: CANDLES BURN. IN FACT, IT’S WHAT THEY DO. BUYER RELEASES SELLER FROM ALL CLAIMS, LIABILITIES AND DAMAGES, INCLUDING WITHOUT LIMITATION CLAIMS FOR PERSONAL INJURY [INCLUDING DEATH] AND PROPERTY DAMAGE, AND REGARDLESS OF WHETHER ASSERTED IN TORT, CONTRACT OR OTHERWISE, WHICH ARISE OUT OF OR ALLEGE THE USE OR MISUSE OF CANDLES PURCHASED FROM SELLER.
NOTICE OF PERISHABLE PRODUCT: CANDLES ARE MADE OF WAX AND ARE PERISHABLE. THEY CAN MELT IF NOT STORED IN A COOL TEMPERATURE BELOW 75 DEGREES FAHRENHEIT. BUYER IS RESPONSIBLE FOR PROPER STORAGE OF CANDLES IMMEDIATELY UPON RECEIPT OF SAME WHERE CANDLES ARE SOLD FOB BUYER’S LOCATION, AND IMMEDIATELY UPON PLACEMENT AT SELLER’S DOCK WHERE CANDLES ARE SOLD FOB SELLER’S PLANT.
Miscellaneous. Seller's failure to strictly enforce any term or to exercise any right arising hereunder shall not constitute a waiver of Seller's right to strictly enforce such term or exercise such right thereafter. Seller’s rights and remedies are cumulative and are in addition to any other rights and remedies Seller may have, whether at law or in equity. To be valid, a waiver by Seller of a default by Buyer must be in writing and signed by Seller’s President; and no such waiver shall operate as a waiver of any other default or of the same default thereafter. No finding by a court of competent jurisdiction that a term herein is invalid, illegal or unenforceable shall affect the validity, legality and enforceability of any other term. Section headings are for convenience only, and do not affect the substance or interpretation of any section herein. Except as set forth herein, these terms shall bind and inure to be benefit of both Seller and Buyer and their heirs, successors and assigns with respect to an accepted order. These Terms and Conditions supersede and control over all Other Agreements, written or oral. Orders placed through electronic means are subject to these Terms and Conditions in addition to any other agreements concerning electronic procedures, but these Terms and Conditions shall control in the event of any inconsistency between such Other Agreements and these Terms and Conditions.
Export Compliance. Buyer agrees not to export, re-export, or provide product to any person, entity or destination prohibited under United States law from receiving such product, without obtaining prior U.S. Government authorization. Seller’s warranties may vary or may be null and void for product exported outside the United States. Unless otherwise specifically agreed by Seller in writing, Buyer takes full responsibility for ensuring that all product complies with the laws of the state or country of destination. Neither party shall take (or be required to take) any action that is impermissible or penalized, and shall refrain from taking any action that is prohibited, under the laws of the United States or any applicable foreign jurisdiction, including without limitation the United States anti-boycott laws.
Compliance with Laws. Buyer will comply with all applicable anti-bribery and anti-corruption laws, regulations, rules and requirements including the United States Foreign Corrupt Practices Act (“FCPA”), the laws, regulations, rules and requirements of Buyer’s country, and any other applicable laws, regulations, rules and requirements. In accordance with this understanding, Buyer represents that it, and each of its owners, directors, officers, employees, and agents have not and will not, in connection with any transaction involving Seller or its products, directly or indirectly: (a) offer, promise, authorize or make any payments of money or anything of value to any “Government Official” or to any agent or intermediary for further payment to any Government Official, to (i) influence the acts or decisions of such Government Official, (ii) induce the Government Official to do or omit to do any act in violation of a lawful duty, (iii) obtain any improper advantage, or (iv) induce the Government Official to use his or her influence in order to affect any government act or decision, in order to obtain, retain, or direct business to any person or entity; or (b) otherwise offer, promise, authorize or pay any illegal bribe, kickback or other payment in violation of any applicable law, and this prohibition includes “Facilitation Payments.” A “Government Official” includes any appointed or elected official or any career or other employee of any non-U.S. national, regional or local Government or of a public international organization; any non-U.S. political party or party official; or any candidate for non-U.S. political office, in any country. The term “Government” includes any agency, department, embassy or other government entity or instrumentality, as well as any company or other entity owned or controlled by the Government, in whole or in part. If Seller reasonably believes that Buyer is in breach of this paragraph, Buyer shall cooperate in good faith to determine the scope of such breach, and Seller shall have the right in Seller’s sole discretion to terminate unilaterally any pending or ongoing transaction with Buyer without liability.