The Terms & Conditions (“Agreement”) contained herein constitute the entire agreement between PURE 5 TM. (“PURE 5 TM”) and you (“Buyer”). PURE 5 TM will not be bound by any terms of Buyer’s order. No form of acceptance except PURE 5 TM’s written acknowledgment to Buyer, or PURE 5 TM’s commencement of performance shall constitute valid acceptance of Buyer’s order. Any such acceptance is expressly conditioned on assent to the terms hereof and the exclusion of all other terms. Buyer shall be deemed to have assented to the terms hereof, whether or not previously received, upon accepting delivery of anything shipped by way of PURE 5 TM. If tender of these terms is deemed an offer, acceptance is expressly limited to the terms hereof.
1.1 “Products” shall mean any products identified for sale on: (a) PURE 5 TM’s website(s), (b) any of PURE 5 TM’s proposals or quotations, or (c) any of PURE 5 TM’s invoices.
2.1 Buyer shall purchase products by issuing offers as issued by an authorized representative, indicating specific Products, quantity, price, total purchase price, shipping instructions, shipto addresses, tax exempt certifications, if applicable, and any other special instructions. Any contingencies contained on such order are not binding upon PURE 5 TM. PURE 5 TM will accept or reject orders according to its thencurrent process. All orders are subject to acceptance by PURE 5 TM at its corporate headquarters.
2.2 Each offer made by a Buyer for Products offered becomes legally binding upon acceptance by the Seller. Upon acceptance of any offer, Buyer agrees to submit a Purchase Order for the offered Products. PURE 5 TM will contact Buyer to finalize the purchase and arrange the subsequent shipping of the Products.
3. SHIPPING AND DELIVERY
3.1 Shipping dates will be established by PURE 5 TM upon receipt of orders from Buyer.
3.2 Shipping terms are FCA PURE 5 TM designated shipping location. Risk of loss and title shall pass from PURE 5 TM to Buyer upon delivery to the carrier or Buyer’s representative at the FCA point. Delivery shall be deemed made upon transfer of possession to the carrier. Buyer shall be responsible for all freight, handling, customs charges and insurance charges. Unless given written instruction, PURE 5 TM shall select the carrier. In no event shall PURE 5 TM have any liability in connection with shipment, nor shall the carrier be deemed to be an agent of PURE 5 TM. PURE 5 TM shall not be liable for damage or penalty for delay in delivery or for failure to give notice of any delay.
3.3 Buyer grants PURE 5 TM a security interest in products purchased under this Agreement to secure payment for those products purchased. If requested by PURE 5 TM, Buyer agrees to execute financing statements to perfect this security interest.
4. PRICES AND PAYMENT
4.1 Unless otherwise specified, prices for products are quoted in US dollars and are FCA PURE 5 TM designated shipping location.
4.2 All stated prices are exclusive of any taxes, fees, duties, or other amounts, however designated, and including without limitation, value added and withholding taxes which are levied or based upon such charges, or upon this Agreement. Any taxes or customs charges related to products purchased or licensed pursuant to this Agreement shall be paid by Buyer, or Buyer shall present an exemption certificate acceptable to the taxing authorities. Applicable taxes shall be billed as a separate item on the invoice, to the extent possible.
4.3 All payments shall be made by a check acceptable to PURE 5 TM, or by other payment instrument to include PayPal, wire transfer, or other such payment instrument approved by PURE 5 TM. Unless agreed otherwise the payment must be made to PURE 5 TM prior to delivery. PURE 5 TM may elect to extend terms on a preapproved basis only. By acceptance of this agreement, Buyer agrees that any payments made to PURE 5 TM, via PayPal or by any other payment vehicle, are subject to all of the terms and conditions contained herein. Unless otherwise specified, all payments shall be made in U.S. currency. Any sum not paid by Buyer when due shall bear interest until paid at a rate of 1.5% per month (18% per annum), or the maximum rate permitted by law, whichever is less.
5. WARRANTY AND RETURNS
5.1 PURE 5 TM warrants the form, fit, and function for a period of 90 days from the date of purchase to perform in compliance with the manufacturer’s published data sheet. Unless otherwise stated, all orders placed with PURE 5 TM are deemed noncancelable and nonreturnable, except for instances as covered by PURE 5 TM’s warranty. All other warranties are set forth in the product Manufacturer’s Limited Warranty Statement applicable to and/or delivered with the Products.
5.2 It is the responsibility of the buyer to thoroughly inspect and test all product received from PURE 5 TM immediately upon receipt and promptly notify PURE 5 TM of problems. Products are deemed accepted by Buyer unless PURE 5 TM is notified in writing of any warranty claims within 90 days of receipt. Any claims for shortages or intransit damage must be reported in writing to PURE 5 TM. within 10 days of receipt.
5.3 PURE 5 TM DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
5.4 In no event shall PURE 5 TM or its supplier’s liability to Buyer, whether in contract, tort (including negligence), or otherwise, exceed the price paid by Buyer under this Agreement. The foregoing limitations shall apply even if the abovestated warranty fails of its essential purpose.
5.5 IN NO EVENT WILL PURE 5 TM OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT EVEN IF PURE 5 TM OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.6 In all cases where a product is returned, Buyer shall call and obtain a Return Material Authorization (“RMA”) number from PURE 5 TM. A customer has ten (10) business days from notification of approval of the RMA request to arrange for and ship the product back to PURE 5 TM. If the product is not in transit by the end of the tenday period, the RMA will typically be closed and the customer notified that the RMA is no longer valid. All RMAs shall be for replacement Products, or at PURE 5 TM’s discretion, credit for future purchases.
5.7 For product returned, Buyer is responsible for: (a) proper packing of products, including description of the failure? (b) insurance of all packages for replacement cost? (c) shipment FCA PURE 5 TM designated reception location? (d) return of products within five (5) days after issuance of the RMA number, including restocking fees where applicable? (e) shipping costs to PURE 5 TM, and (f) compliance with PURE 5 TM RMA procedure for all shipments, as follows: (i) each request to PURE 5 TM for an RMA number must specify the number, type, and serial number, if applicable, for each product to be returned? PURE 5 TM will provide the local RMA shipment address upon request? and (ii) product sent back to PURE 5 TM must agree exactly in the number, type, and serial numbers, if associated with the RMA transaction. PURE 5 TM, at its option, will replace the returned product or issue a credit for future purchases at the original purchase price of the product. Shipping costs will not be refunded.
6. INTELLECTUAL PROPERTY LIMITATION OF LIABILITY
6.1 PURE 5 TM shall have no liability for any claim, suit or proceeding brought against Buyer based on a claim that any Product supplied hereunder infringes any copyright, patent, or other intellectual property right in the United States or any other country.
6.2 PURE 5 TM has no liability for any claim based upon the combination, operation, or use of any product supplied hereunder with equipment, devices, or software, or for any claim based upon alteration or modification of any product supplied hereunder.
6.3 PURE 5 TM SHALL BE HELD HARMLESS FOR TYPOGRAPHICAL ERRORS APPEARING ON THE PURE 5 TM WEBSITE TO INCLUDE PART NUMBERING, QUANTITY, OR PRICING ERRORS.
6.4 THE FOREGOING STATES THE ENTIRE OBLIGATION OF PURE 5 TM WITH RESPECT TO INFRINGEMENT OF PROPRIETARY RIGHTS AND PURE 5 TM DISCLAIMS, ALL WARRANTIES OF NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS.
7. EXPORT RESTRICTIONS
7.1 Buyer shall obtain all licenses, permits, and approvals required by any government and shall comply with all applicable laws, rules, policies, and procedures of the U.S. Government.
7.2 All shipments are sold under INCOTERMS, delivered duty unpaid (DDU). Buyer shall be responsible for all VAT (Value Added Taxes), duties, custom charges, and associated import fees.
8. CONFIDENTIAL INFORMATION
Buyer shall hold confidential and shall not use or permit others to use any confidential information identified as such in writing or orally by PURE 5 TM or information which Buyer knows or has reason to know is confidential, proprietary, or trade secret information of PURE 5 TM.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE HEREIN, EXCEPT FOR CLAIMS OF PERSONAL INJURY OR DEATH, ALL LIABILITY OF PURE 5 TM AND ITS SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO MONEY PAID TO PURE 5 TM UNDER THIS AGREEMENT AND IN THE CASE OF DAMAGES RELATING TO ANY ALLEGEDLY DEFECTIVE OR INFRINGING PRODUCT, SHALL, UNDER ANY LEGAL OR EQUITABLE THEORY, BE FURTHER LIMITED TO THE PURCHASE PRICE PAID BY BUYER FOR SUCH PRODUCT.
10. CONSEQUENTIAL DAMAGES WAIVER
IN NO EVENT SHALL PURE 5 TM OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF PURE 5 TM OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. GENERAL TERMS
11.1 The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the County of Maricopa, State of Arizona, United States of America, as if performed wholly within the County of Maricopa, State of Arizona without giving effect to the principles of conflict of law. Any legal actions by either party under this agreement shall be taken in the court of Maricopa County, Arizona. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
11.2 PURE 5 TM shall not be liable for any delay or failure in performance whatsoever due to acts of God, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics, and other occurrences beyond PURE 5 TM’s reasonable control.
11.3 No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement.
11.4 Neither this Agreement nor any rights under this Agreement, other than monies due or to become due, shall be assigned or otherwise transferred by Buyer (by operation of law or otherwise) without the prior written consent of PURE 5 TM. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.
11.5 In the event that any of the terms of this Agreement become or are declared to be illegal by any court of competent jurisdiction, such terms shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.
11.6 In the event of a breach of this Agreement, the breaching party shall pay to the other party any reasonable attorneys’ fees and other costs and expenses incurred by the nonbreaching party in connection with the enforcement of any provisions of this Agreement.
11.7 Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
11.8 This Agreement, including the product warranty referenced herein, constitutes the entire agreement between the parties hereto concerning the subject matter of this Agreement, and there are no conditions, understandings, agreements, representations or warranties, expressed or implied, which are not specified herein. This Agreement may only be modified by a written document executed by authorized representatives of PURE 5 TM and Buyer.