Branding
1. In order to protect the brands of PURPL Scientific Inc. the Affiliate hereby ensures to not use any copycat sites, contents or images from any PURPL Scientific Inc. Websites other than those explicitly provided by PURPL Scientific Inc.. Usage of the provided contents is permissible only in connection with the direct marketing of products of PURPL Scientific Inc.
Furthermore, the Affiliate is obliged to make sure that the Affiliate Website(s) does not aim to mimic PURPL Scientific Inc.'s Websites in any way whatsoever.
2. PURPL Scientific Inc. reserves the right, at any time, to review the Affiliate's placement and approve the use of the Affiliate's links and require that the Affiliate changes the placement or use to comply with the guidelines provided.
§ 1 Scope
These General Terms and Conditions of Sale and Delivery (these “Terms”) are applicable to customers (the “Customers” and each, individually, a “Customer”) of PURPL Scientific Inc. (the “Company”).
§ 2 Terms and conditions of sale
Company shall sell and deliver to Customer and Customer shall purchase
and accept from Company the products (herein, the “Products”) described
on or in any confirmed order, agreement or quotation, or any combination
thereof (the “Order”), pursuant to the terms and conditions of the
Order and those specified below, which taken together shall constitute
the entire agreement between Company and Customer regarding the Products
(herein, this “Agreement”).
No other terms or conditions shall be of any effect unless otherwise
specifically agreed to by Company in a separate written agreement duly
signed by an officer of the Company. Customer will be deemed to have
assented to all Terms if any part of the Products is accepted by the
Customer. If Customer finds any Term not acceptable, Customer must so
notify the Company at once and must reject the Products delivered under
this Agreement. Any additional or different terms or conditions
contained in Customer’s order or response hereto shall be deemed
objected to by Company and shall be of no effect. No general terms and
conditions of a Customer shall at any time form a part of the content of
any contract or agreement between the Customer and the Company, even if
they are not further expressly rejected by the Company.
Unless otherwise agreed in writing, all quotations for Products are valid for a period of three (3) months from the date of issue. Subsequent modifications in quantity or quality, if such are requested by Customer, generally will cause a modification of the quoted price. Samples enclosed with any quotation remain the property of Company. All samples shall be treated confidentially by Customer and must be returned to Company after usage.
No Order is binding upon the Company until the earlier of acceptance of the Order in writing or the delivery of the Products to the Customer. Notwithstanding any prior acceptance of an Order by Company, Company shall have no obligation if the Customer is in breach of any of its obligations hereunder, or any other agreement between the Customer and Company, at the time Company’s performance was due.
All verbal agreements concerning the terms of any Order, including
agreements made by telephone, shall have no force and effect unless and
until acknowledged by the Company in writing.
Customer shall bear all costs associated with the cancellation or
modification of the Order. Shipping costs are non-refundable; there is a
$ 25.00 restocking fee for any returned or undeliverable items.
No returns/no refunds: All sales are final. No refunds will be given after sale. No returns will be accepted.
§ 3 Prices
All price quotations are EX
WORKS (per Incoterms 2000) from Company’s principal place of business
or its parent company’s principal place of business in Germany, and do
not include costs for packaging, postage or other freight charges,
customs duties, insurance or taxes, if any.
The price of
the Products shall be the Company’s current prices in effect from time
to time. A price list is available on request.
Company
may, without notice to Customer, increase the price of the Products by
the amount of any new or increased tax or duty (excluding franchise, net
income and excess profits taxes) which Company may be required to pay
on the manufacture, sale, transportation, delivery, export, import or
use of the Products or the materials required for their manufacture or
which affects the cost of such materials.
§ 4 Terms of payment
Unless otherwise
agreed to in writing by the Company, the amount invoiced shall be due
and payable prior to delivery of the Products. Customer shall make
payments by check or wire transfer to the account indicated on the
invoice without a cash discount or offset and the Company shall not be
required to incur any expense to receive timely payment in full as
required by this Agreement.
Company may, without notice,
change or withdraw extensions of credit at any time. If Company ceases
to extend credit terms before shipment, Customer’s sole remedy shall be
cancellation of its order. If Customer does not receive notice before
shipment, its sole remedy shall be rejection of the Products immediately
upon delivery.
If the Customer fails to make payment on
or before the date required, Customer shall pay interest to the Company
at the rate of one and one-half percent (1.5%) per month or such lesser
amount permitted by law. The specification or charging of interest shall
not be deemed an agreement to extend credit.
If Customer
fails to observe these Terms or the terms of any other agreements
between Company and Customer, or if Customer becomes insolvent, all
balances then due and owing to the Company shall become due immediately,
notwithstanding any agreed upon payment periods. Any Orders that have
been confirmed by the Company, but not yet filled, shall in such cases
become cancelable at the sole discretion of Company.
Customer does not enjoy a right of set-off under any circumstances.
§ 5 Delivery terms
Title to and risk of loss for the Products shall pass to Customer upon delivery thereof to any common carrier at Company’s site.
Customer will be billed for and shall pay all freight, transportation, shipping, insurance and handling charges, duties, and taxes, including any applicable VAT, sales, personal property, ad valorem, and other taxes, duties, levies or charges imposed by any governmental authority, irrespective of whether applicable law makes such items the responsibility of the buyer or seller, but excluding any taxes payable by Company with respect to its net income.
Company or its agent may select any commercial air, ship, motor or rail carrier or any combination thereof for the transportation of the Products and will notify Customer thereof at the time Customer places each Order. Company will make deliveries of the Products in the quantities ordered as near as reasonably possible to Customer’s requested delivery dates.
Company shall use its reasonable efforts to deliver the Products to Customer by the agreed upon date. However, except in cases of Company’s willful misconduct or gross negligence, Company shall not be liable to Customer for delays in delivery or damage to the Products while in transit, irrespective of whether Company or Customer determined the mode of transportation.
§ 6 Limitation of liability
IN NO
EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES
FOR LOSS OF PROFITS, REVENUE, GOODWILL OR USE, INCURRED BY CUSTOMER OR
ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT
LIABILITY, OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE TERMS
AND CONDITIONS SET FORTH IN SECTION COMPANY’S LIABILITY – WHETHER BASED
UPON CONTRACT, TORT, EQUITY, NEGLIGENCE OR ANY OTHER LEGAL CONCEPT –
SHALL IN NO EVENT EXCEED THE VALUE OF CUSTOMER’S ORDER, AS DESCRIBED ON
THE ORDER FORM, OR THE ORDER VALUE FOR (1) CALENDER [CALENDAR] YEAR,
WHICHEVER AMOUNT IS LOWER. IT IS AGREED AND ACKNOWLEDGED THAT THE
PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN COMPANY AND
CUSTOMER, THAT COMPANY’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND
BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, COMPANY WOULD NOT
HAVE ENTERED INTO THIS AGREEMENT.
IN JURISDICTIONS THAT
LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR
DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED,
THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR
LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT
VARY BY STATE, COUNTRY OR OTHER JURISDICTION.
§ 7 Force majeure
Company shall not be
liable to Customer or any other person for any failure or delay in the
performance of any obligation under this Agreement due to events beyond
its reasonable control, including, but not limited to, fire, storm,
flood, earthquake, explosion, accident, acts of the public enemy, wars,
riots and public disorder, sabotage, strikes, lockouts, labor disputes,
labor shortages, work slowdown, stoppages or delays, shortages or
failures or delays of energy, materials, supplies or equipment,
transportation embargoes or delays, acts of God, breakdown in machinery
or equipment, and, except as otherwise set forth in this Agreement, acts
or regulations or priorities of the federal, state or local
governments.
Customer shall not be liable to Company or
any other person for any failure or delay in the performance of any
obligation under this Agreement due to events beyond its reasonable
control, including, but not limited to, fire, storm, flood, earthquake,
explosion, accident, acts of the public enemy, wars, riots and public
disorder, sabotage, strikes, lockouts, labor disputes, labor shortages,
work slowdown, stoppages or delays, shortages or failures or delays of
energy, materials, supplies or equipment, transportation embargoes or
delays, acts of God, breakdown in machinery or equipment, and, except as
otherwise set forth in this Agreement, acts or regulations or
priorities of the federal, state or local governments.
When the event operating to excuse performance by either party shall
cease, this Agreement shall continue in full force until all deliveries
have been completed.
§ 8 Miscellaneous terms
This Agreement and all claims arising out of or related to this Agreement, including tort claims, shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than New York.
Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be exclusively settled by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The award shall be final and binding. Judgment upon the award rendered by the arbitrator or the arbitrators may be entered in any court having jurisdiction thereof.
The arbitration shall be held in New York, New York, shall be conducted in the English language, and shall be conducted (i) if the amount in dispute is less than two hundred fifty thousand dollars ($250,000), before a single arbitrator mutually agreeable to Company and Customer, or if no agreement can be reached, then selected by the AAA, or (ii) if the amount in dispute is two hundred fifty thousand dollars ($250,000) or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney’s fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate.
In addition, the losing party shall reimburse the prevailing party for reasonable attorneys’ fees and disbursements, the costs of the arbitration (including but not limited to the fees and expenses of the arbitrator and expert witnesses) and the costs incurred by the prevailing party in successfully seeking any preliminary equitable relief or judicially enforcing any arbitration award.
If any provision contained in this Agreement is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable.
Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
In the event of a violation or threatened violation of Company’s proprietary rights, Company shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Company would suffer irreparable harm.
The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties.
This Agreement shall apply to all sales of the Products to Customer.
This Agreement, including any Schedules attached hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns.
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