Customer (also referred to at times as “You”) and Zoomget Business-to-Business LLC (“Seller”) (collectively “the Parties”) desire to enter into an agreement by which Customer purchases from Seller the merchandise described on Customer’s purchase order (the “Purchase Order”). Seller has agreed to sell Customer the merchandise described on the Purchase Order provided Customer agrees to: a) all terms set forth on Seller’s invoice to Customer for the merchandise set forth in the subject invoice (the “Merchandise”) and b) these Terms & Conditions (“T&Cs”), which are incorporated herein Customer agrees that each and every shipment of Merchandise shall be governed exclusively by the terms of the T&Cs and the subject invoice. Any provisions in the Purchase Order, Customer’s subsequent purchase orders, billing statements, acknowledgment forms or similar documents which are inconsistent with the provisions of these T&Cs or any invoice from Seller shall be deemed waived by Customer and are of no force or effect.
DELIVERY AND FREIGHT
All delivery dates quoted are estimates only. All freight and delivery charges from Seller’s warehouse shall be paid as a separate item and are not included in Seller’s price unless specifically so stated. Seller has option to make partial deliveries and Customer shall accept these unless otherwise specifically agreed to by Seller.
PAYMENT AND RISK OF LOSS
The purchase price for the Merchandise shall be paid in accordance with the terms set forth in the subject invoice from Seller to Customer, as well as these T&Cs. In the event Customer fails to fulfill the terms of payment, or in case Seller shall have any doubt at any time as to Customer’s financial responsibility, Seller may decline to make further deliveries, except upon receipt of cash or satisfactory security. Past due balances are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by applicable law, whichever is less. Customer shall pay all costs, fees, including attorney’s fees, and expenses incurred by Seller in collecting monies due or to become due hereunder, regardless of whether a lawsuit is filed. All sales shall be deemed to take place at the applicable Seller’s distribution facility, and both transfer of title for shipped/ purchased Merchandise and the risk of loss for said Merchandise shall be deemed to take place at the applicable Seller’s distribution facility.
Merchandise Returns may be made in accordance with our Return Policy. Items can be returned within 30 days of receipt of shipment if the product is unused, in the same condition received, and in the original packaging. Once the item is received by our warehouse it may take up to 7 days for the refund to transfer to your account. To initiate a product return, please complete this form: Merchandise Return Request.
Invoice Adjustment Policy: Customer must refuse all damaged or Merchandise shipped in error at the time of receiving said Merchandise. Customer must note all shortages/damage and other discrepancies at time of the Merchandise’s delivery and include: 1) an exact count of the Merchandise that was not received or was damaged, 2) Customer’s or consignee’s signature, 3) confirmation of Merchandise’s delivery. If Customer or consignee signs a delivery receipt with no exceptions, it acknowledges receiving a complete shipment. Customer must report all receiving discrepancies to Seller’s Customer Service department within 72 hours of Merchandise delivery date at email@example.com or 1-206-712-7633. Failure to fulfill terms of this policy may result in invoice adjustment being declined. Failure of Seller to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Customer of such claim irrespective of whether the facts giving rise to such claim shall have been discovered or whether processing, further manufacture, other.
PRODUCT NOT FOR RESALE
Customer may not list or resell any of Seller’s Merchandise on any online third-party marketplace without Seller’s prior written consent, including but not limited to selling on third party domestic or international sites (e.g., eBay, Amazon, Alibaba), dropship accounts (e.g., Buy.com, Newegg.com, Overstock.com), classified sites (e.g., Craigslist.com, Facebook, Amazon Marketplace) or direct messages on domestic or international forums. Seller will not accept any order that is deemed to possess characteristics of reselling. Seller reserves the right to cancel any subsequent order from Customer who has been suspected of reselling.
LIMITS OF LIABILITY
It is understood and agreed that Seller’s liability whether in contract, tort, warranty, negligence or otherwise shall not exceed the amount paid by Customer. Under no circumstances shall Seller be liable for special, indirect, punitive, or consequential damages. The price stated on the subject invoice for the purchased Merchandise is a consideration limiting Seller’s liability. No action, regardless of form, arising out of the transactions under each invoice may be brought by Customer more than one year after the date of each invoice.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE SELLER SHALL NEVER BE HELD TO BE OBLIGATED OR LIABLE UPON OR UNDER ANY GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, BY OPERATION OF LAW, OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS UNDER ANY STATE’S UNIFORM COMMERCIAL CODE IN ANY MANNER OR FORM. CUSTOMER IS MAKING THIS PURCHASE AFTER AND IN RELIANCE ON ITS FULL AND COMPLETE EXAMINATION OF THE MERCHANDISE, AND NOT BY REASON OF ANY REPRESENTATION AS TO ITS MERCHANTABILITY, SPECIFIC ATTRIBUTES OR OTHERWISE, MADE BY OR ON BEHALF OF THE SELLER.
Seller’s failure to insist upon performance of any of the terms and conditions herein, or to exercise any right or privilege, or Seller’s waiver of any breach hereunder shall not thereafter waive any of the terms, conditions or provisions, whether of the same or similar type. The invalidity, in whole or in part, of any provisions hereof shall not affect the validity of any other provision.
This Agreement is not assignable or transferable by Customer, in whole or in part, except within the written consent of Seller, which consent may be withheld.
When in the opinion of Seller there is a period of shortages of supply of Merchandise for any reason, Seller may allocate its available supply among any or all of its various customers upon such basis as Seller shall deem fair and practicable, with no liability on its part for failure to deliver the quantity or any portion therein specified to Customer. If questions, issues or concerns arise please contact Seller’s Customer Service department at firstname.lastname@example.org or 1-206-712-7633.
Force Majeure – Notwithstanding anything to the contrary contained herein, neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, acts of war or terrorism, pandemics, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties or civil unrest. Notwithstanding the foregoing, in the event of such an occurrence, each party agrees to make a good faith effort to perform its obligations hereunder.
Governing Law & Forum. Any dispute between the Parties shall be governed by Washington state law, without giving effect to any conflict of law provision. The dispute shall be resolved exclusively in the King County Superior Court (Kent courthouse) and Customer consents to both jurisdiction and venue. The prevailing party in any dispute shall be entitled to recover its attorneys’ fees and costs.
Customer agrees to keep the terms of its agreement with Seller (including, but without limitation, all information found on each invoice and these T&Cs) confidential. It will not disclose them to any third party except for Customer’s accounting and legal professionals.
No Agency. Customer acknowledges that it is not an employee, agent, or independent contractor of Seller. Customer has no authority to Seller.
Entire Agreement. Each invoice and these T&Cs constitute the entire agreement between the Parties. No modification of any invoice or these T&Cs is valid and enforceable unless it is in writing signed by an officer of Seller.
Effective Date. The effective date for the sale of Merchandise under each invoice shall be the actual date of each invoice. All references to dates in these T&Cs shall be calculated using the subject invoice date.
TITLES AND HEADINGS
Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.