I. Offer and Contract
No offer or contract shall be binding upon Nova Tea Company LLC.(the “Seller”) except by issuance of the Seller’s printed acknowledgement form. Acceptance by Seller of buyer’s (the “Buyer”) order is expressly made conditional on assent of these terms and conditions (the “Terms and Conditions”), either by written acknowledgement or by conduct of Buyer that recognizes the existence of a contract with respect to the products (the “Products”) and services described on Seller’s acknowledgement. No additional or different terms or conditions will be binding upon Seller unless specifically agreed to in writing; failure of Seller to object to conditions contained in any other writing or other communication from Buyer shall not be construed as a waiver of these Terms and Conditions nor acceptance of any such other provisions. These Terms and Conditions also serve as notice of Seller’s objection to and rejection of any terms and conditions of purchase or sale included in Buyer’s order or other writing that are different from or additional to these Terms and Conditions. Paragraph headings herein are for convenience only and are not to be considered in interpreting any of the provisions herein.
II. Delivery and Risk of Loss and Licenses
- Delivery of the Products to a common carrier at Seller‘s principal place of business or at any other loading point, if so agreed to by the parties in writing, shall constitute delivery to Buyer (“Delivery”), and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall upon Delivery, shift to Buyer. If Buyer is responsible for any shipment delay, Seller‘s written notification to Buyer that the Products ordered hereunder are ready for shipping shall constitute Delivery to Buyer, and all further risk of loss or damage as well as all costs for handling, transportation and storage shall be borne by Buyer.
- Seller shall not be liable for any damages as a result of any delay or failure to deliver due to any cause beyond Seller‘s reasonable
control, including without limitation, any act of God, act of Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, delay in transportation or inability to obtain necessary labor, materials or manufacturing facilities.
Seller reserves the right to revise and discontinue Products at any time and without prior notice. Seller will ship Products that have the same or similar functionality and performance of the Products ordered, but changes, including but not limited to changes with regard to color, measurements and weight, due to technical requirements between what is shipped and what is described in specification sheets, catalogs, brochures or the like, are possible and shall not constitute a defect in the Product or non-compliance on the part of the Seller.
IV. Prices and Payment
- If the Products are shipped from Seller‘s principal place of business or from any other location within the U.S.A., the quoted price is ex works Seller‘s principal place of business or the location of shipment, whichever is applicable unless otherwise agreed upon in writing. If Products are shipped from outside the U.S.A., the quoted price is ex works, port of dispatch, unless otherwise agreed upon in writing.
- The quoted price of the Products does not include taxes, including but not limited to sales taxes, freight costs or similar charges which shall be borne by Buyer, unless otherwise agreed upon in writing. All prices are subject to change prior to Seller’s issuance of an acceptance form. For all prices, products, and services Seller reserves the right to make adjustments due to changing market conditions, product discontinuation, or other extenuating circumstances.
- Buyer shall be responsible for any shipping charges of shipments of the Products and Buyer shall reimburse Seller for any such charges paid by Seller, unless otherwise agreed upon in writing.
V. Limited Warranties
Seller warrants that the Products shall be free from defects in material and workmanship for a period of seven (7) days from the date of shipment. Seller‘s obligations under the aforesaid warranty shall be repairing or replacing any part or parts of the Products, which if used, stored and maintained, prove defective in material and workmanship.
- Such repair or replacement shall be Seller‘s sole obligation and Buyer‘s sole remedy hereunder and shall be conditioned upon a) Seller’s receipt of written notice of any alleged defect within seven (7) days after its discovery, and b) at Seller‘s option, return of such defective Products freight prepaid to Seller‘s principal place of business. Any Product repaired or replaced pursuant to this warranty will be warranted for the remainder of the original warranty period.
- Seller‘s obligations under paragraph 1. of this provision shall not apply to any component or part of the Products sold hereunder which.
a) is consumed by normal wear and tear, or
b.) which is consumed by excessive or abnormal use, or
c.) which has a normal life inherently shorter than the herein stated warranty period, or
d.) which has been damaged due to negligent or faulty use, alteration, maintenance, storage, or handling by Buyer.
- Any description or representation of the Products whether in writing or made orally by Seller or Seller‘s agents, specifications, samples, bulletins, drawings, or similar materials used in connection with Buyer‘s order are for the sole purpose of identifying the Products and shall not be construed as an express warranty.
Any suggestions by Seller or Seller‘s agents regarding use, application or suitability of the Products shall not be construed as an express warranty unless confirmed to be such in writing by Seller.
- The warranty expressed herein shall be in lieu of any other warranties, expressed or implied, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose, and is in lieu of any and all other obligations ob liability on seller’s part.
VI. Warranty Claims, Inspection, and Waiver of Defects
- Written notice of any alleged covered defect must be presented to Seller within seven (7) days after its discovery, and Seller must be allowed to inspect the Products while they are in the alleged defective condition.
- Buyer shall inspect all Products immediately upon their arrival and shall give written notice to Seller within seven (7) days after receipt of the Products of any claim that the Products do not conform to the terms of the contract. Seller shall have reasonable access to inspect any allegedly non-conforming Products.
- Buyer waives any right to assert any claim against Seller arising from any non-conformity of the Products sold hereunder which would have been observable on reasonable inspection or testing within seven (7) days after Delivery.
VII. Limitation of Liability
- Except as otherwise agreed in writing, Seller‘s liability with respect to the Products shall be limited to the warranty provided in Articles V. and VI. hereof, and shall be limited to the contract price.
- Seller shall not be subject to any other obligations or liabilities, whether arising out of breach of contract, warranty, tort (including negligence and strict liability), or other theories of law, with respect to the products sold or service rendered by seller, or undertakings, acts or omissions relating thereto. Under no circumstances will seller be liable for any incidental or consequential damages, or for any other loss, damage or expense of any kind, including loss of profits, arising in connection with the contract or with the use for liability to use seller’s products furnished under this contract. Seller’s sole liability and buyer’s sole remedy is limited to either
(1) Repair or replacement of defective parts or products, and/or
(2) At seller’s option, return of the products to seller and refund of purchase price.
VIII. Security Interest
Buyer hereby grants to seller a security interest in the products sold hereunder to secure payment of the purchase price of such products and agrees, and appoints seller its agent, to take all such action and to execute all such documents and instruments as may be necessary or reasonably requested by seller to perfect and continue seller’s security interest hereunder.
If at any time any one or more of the provisions of these Terms and Conditions become invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions of these Terms and Conditions shall not be in any way impaired.
All disputes arising under this Contract shall be settled by final and binding arbitration in the City of West Palm Beach, Florida in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The parties may agree on the selection
of a single arbitrator, but in event they cannot agree, each party shall select an arbitrator and the two selected arbitrators shall select a third arbitrator. Each party shall be responsible for its costs of the arbitration. The award by the arbitrator or arbitrators shall be final and judgement up on the award rendered may be entered in any court having jurisdiction thereof.
XII. Governing Law
This agreement and any sales hereunder shall be construed in accordance with and governed by the laws of the state of Florida, without regard to its conflicts of law rules.
XIV. Complete Agreement
These Terms and Conditions of Sale and Seller’s acceptance form constitutes the complete and exclusive statement of the agreement between the parties hereto. It supersedes all prior written and oral statements, including prior representations, statements, conditions,