DEFINITIONS AND SCOPE: "Seller" means SIMPLY SMART HOLDINGS dba SIMPLY SMART INDUSTRIAL, or one or more of its affiliates or subsidiaries, and "Buyer" means the firm, person, corporation, or business entity purchasing the “Goods” from Seller. "Goods" means the goods and/or services described in any Purchase Order (defined below) delivered to Seller. This General Terms and Conditions for Sale of Goods Agreement (the “Agreement”) shall be effective upon the date the Buyer first delivers a Purchase Order to Seller, or the date Seller delivers its first quote to the Buyer, whichever is earlier (the “Effective Date”), and shall govern the terms and conditions of the purchase and sale of goods between Buyer and Seller.
PURCHASE ORDERS AND ESTIMATES: Orders for the purchase of Goods (“Purchase Orders”) must be submitted to Seller by facsimile, Seller’s online ordering portal, Seller’s internal electronic ordering system, email, or in Seller’s discretion on a case-by-case basis, orally. Each Purchase Order shall specify (i) the quantity of Goods being ordered, (ii) prices for the Goods as provided in Section 4 below, (iii) payment terms granted by Seller, and (iv) a receipt date. Prior to issuance of an Order, an Estimate is will be provided by the Seller for the Buyer to base their order upon. It is the Buyer’s responsibility to ensure the Purchase Order generated matches the Goods provided by the Seller on the Estimate. Any deviation or inconsistency on the Order from the Seller provided Estimate is the fault of the Buyer. In such case, the Buyer will bear the cost of any expense Seller incurs from remedying the inconsistency. Receipt dates must be during the term of the Agreement, except Buyer may request, and Seller may elect to accept in its sole discretion, a Purchase Order with a requested receipt date after the expiration or termination of this Agreement, in which case the terms and conditions of this Agreement shall apply to such shipment, but under no circumstances should such shipment be deemed to be or construed as an extension of this Agreement.
ACCEPTANCE: By submitting a Purchase Order to Seller, Buyer accepts to be bound by the terms and conditions of this Agreement. Purchase Orders are subject to written acceptance by an authorized representative of Seller. Purchase Orders submitted by Buyer hereunder shall not be binding on the Seller until the earlier of written acceptance by Seller or shipment, and acceptance by shipment shall only be binding as to the portion of the Purchase Order shipped by Seller. Any automatic or computer-generated response to a Purchase Order by Seller’s automated response system or otherwise shall not be deemed acceptance of a Purchase Order. Notwithstanding the foregoing, Seller reserves the right to refuse, cancel or delay any Purchase Order placed by Buyer and accepted by Seller when Buyer is delinquent in payments or when Buyer has failed to perform any of its material obligations under this Agreement.
PRICES AND TAXES: The price to be paid by Buyer shall be either: (a) the price contained on the Seller's price list last published, before the date of actual delivery of the Goods; or (b) if a quote was provided by Seller relating to a specific Purchase Order, then price contained in the quote for that specific Purchase Order. Unless explicitly stated, the price for the Goods covered by this Agreement excludes all transportation costs, freight, insurance and special handling and packaging, or any required federal, state or local sales or other taxes (except for taxes based on Seller’s net income), duties, export or custom charges, VAT charges, brokerage or other fees, for which costs Buyer shall be fully responsible. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller’s prior, express written approval.
INVOICING AND PAYMENT: Seller shall timely render invoices for the Goods and shall invoice for each shipment, and upon completion of any services. Itemized invoices shall reference Buyer’s Purchase Order number and shall contain (1) a reconciliation of the amount(s) invoiced by reference to the applicable Buyer Purchase Order, (2) an itemization of each reimbursable expense (if any) authorized under the applicable Purchase Order, along with receipts or other substantiation as may be reasonably requested by Buyer, (3) any other information as reasonably requested by Buyer. All payments hereunder will be made by Buyer to Seller in United States Dollars, to the address shown on the face of the invoice or as otherwise directed by Seller within thirty (30) days after invoice receipt, unless a different period is agreed in writing among the parties. Payment for the Goods shall be made by check, online payment, or ACH.
CHANGES: No changes shall be made to any Purchase Order as to quantity, description, price, terms, description of services, or shipping terms, unless accepted by the Seller in writing.
RELY UPON INFORMATION; All Goods supplied by the seller are dependent on accurate information provided by the Buyer throughout any communication prior to receipt of Order and considered Rely Upon Information. In the event, Buyer provides inaccurate, incorrect, or unclear information about the Goods they would like to purchase, Buyer will be liable for any remedy the Seller incurs monetary or otherwise. This Rely Upon Information includes but is not limited to; Goods Description, Technical Data, Specifications, Material Need Dates, Quantities, Country of Origin Restrictions, Approved Manufacturer’s List, Delivery Location, Goods Requirements, Shipping Requirements, etc.
INSPECTION: Buyer shall inspect the Goods promptly upon receipt for non-conformity (including quantity, quality, and/or defects). Buyer shall have ten (10) days from the date of arrival of the Goods to the shipping location designated by Buyer to notify Seller in writing of any discrepancies in the quantity or quality of the Goods. Any Goods that are in fact defective or non-conforming shall be returned to Seller, and Seller will either credit the Buyer’s account for all amounts paid for the non-confirming Goods or replace the returned Goods. Failure by Buyer to provide Seller with written notice of a claim within ten (10) days from the date of delivery or, in the case of non-delivery, from the date fixed for delivery, shall constitute a waiver by Buyer of all claims with respect to such Goods.
SHIPMENT:Transfer of ownership and Risk of Loss of any Goods are transferred from Seller to Buyer once the Goods arrive to the Seller specified delivery location. Once Seller has signed the Seller provided Packing List as Proof of Delivery, Goods are deemed accepted and accounted for upon delivery. It is Buyer’s responsibility to inspect and confirm that the Goods received are correct. If Buyer does not mark on the Seller provided Packing List of any missing Goods, it is the Buyer’s responsibility to remedy.
SELLER’S RIGHT TO DELAY OR CANCEL: The Parties agree that any stated delivery dates are approximate, and that delivery of any Goods ordered from Seller may be delayed for a period of time sufficient to allow Seller to manufacture and assemble or otherwise acquire the Goods for Buyer. The Parties further agree that Seller shall not be held liable to Buyer or any other party for any losses, damages, penalties, or expenses for any delay in delivery of the Goods. Notwithstanding any other terms contained in this Agreement, Seller reserves the right to refuse, cancel or delay any shipment to Buyer if any amounts due to Seller from Buyer for any reason become past due, when payment for a shipment has not been arranged to Seller’s reasonable satisfaction, or when Buyer has failed to perform any of its material obligations under this Agreement. Such refusal, cancellation or delay of any shipment shall not be deemed a breach or default of any Purchase Order by the Seller.
WARRANTY: Seller warrants that the Goods are as described in the Purchase Order, but no other express warranty is made with respect to the Goods. If any model or sample were shown to Buyer, that model or sample was used merely to illustrate the general type and quality of the Goods and not to represent that the Goods would necessarily conform to the model or sample. THE GOODS SOLD UNDER THIS AGREEMENT ARE PURCHASED BY THE BUYER "AS IS" AND SELLER DOES NOT PROVIDE ANY WARRANTY FOR THE GOODS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES THAT THE GOODS ARE OF MERCHANTABLE QUALITY OR THAT THE GOODS CAN BE USED FOR ANY PARTICULAR PURPOSE. Buyer acknowledges that it has not been induced by any statements or representations of any person or representative of Seller with respect to the quality or condition of the Goods and that no such statements or representations have been made. The Buyer acknowledges that it has relied solely on the investigations, examinations, and inspections as the Buyer has chosen to make and that the Seller has afforded the Buyer the opportunity for full and complete investigations, examinations, and inspections.
COMPLETE AGREEMENT: This Agreement is the entire agreement between the Parties with respect to the subject matter and supersedes any prior agreement or communications between the Parties hereto, whether written or oral. No course of prior dealings between the Parties and no usage of the trade shall be relevant to supplement or explain any term used in this Agreement. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection. Any conflicting terms in any Purchase Order or agreement between the parties, whether orally or in writing, are and shall be superseded by this Agreement.
ASSIGNMENT: Buyer may not assign this Agreement, either in whole or in part, nor delegate any performance hereunder, without the express, written consent of the Seller, which consent shall be at Seller’s sole and absolute discretion. Any assignment without such consent shall be null and void. Seller may assign this Agreement upon written notice to Buyer.
COMPLIANCE WITH LAWS: Buyer represents, warrants, and covenants that it shall comply with all applicable international, national, state, regional and local laws, and regulations in performing its duties hereunder and in any of its dealings with respect to the Goods. Buyer acknowledges and understands that the Goods may be subject to restrictions upon export from the United States and upon resale after export. Buyer therefore represents and warrants that it shall comply fully with all relevant regulations and import and or export control laws of the United States.
INTELLECTUAL PROPERTY. Buyer acknowledges that Seller is the owner of intellectual property related to the Goods, including trademarks (the “Marks”) and proprietary color and patterns used in connection with its Goods (the “Copyrights”). Buyer shall not use the Marks or Copyrights or any part thereof as part of Buyer’s name, nor register any name, including domain names, or mark confusingly similar to the Marks or Copyrights. Buyer acknowledges that it is not being licensed any right or interest of any kind in the Marks or Copyrights and that Buyer may not use same without the prior, written consent of Seller.
FORCE MAJEURE: Seller shall not be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, plague, governmental order, fires, floods, accidents, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, quarantines, or acts of God, in addition to any and all events, regardless of their dissimilarity to the foregoing, beyond the reasonable control of the Seller, for so long as such force majeure event is in effect and for a reasonable period thereafter. Seller shall endeavor to provide Buyer with notice of the occurrence of such an event within ten (10) business days of its occurrence
LIMITATION OF LIABILITY: Buyer will indemnify Seller for any claims, damages, or liabilities arising from improper use, resale, or modification to Goods. In no event will any claims or damages imposed on Seller exceed the amount of that Specific Good on a given Order
RETURN & REFUND POLICY: Buyer may only return Goods if the Good is deemed to be incorrect from the Estimate in which the Purchase Order was generated or if the Good is defective and still within the Inspection period outlined in Article 8 “Inspection”. In the event the Buyer wishes to exchange a product for a different Good from the one provided in the original Estimate, the Buyer will incur a 25% restocking fee and bear any logistical costs with exchanging the Goods.
MATERIAL AVAILABILITY AND PRICING:Seller warrants that Goods quoted in an Estimate are deemed available at the time of quoting. Buyer acknowledges material may not be available once an Order is placed and is subject to availability. In the event Buyer does not purchase all Goods contained in an Estimate, Seller has the right to adjust prices of Goods.
IN NO EVENT SHALL SELLER BE LIABLE UNDER THISAGREEMENT TO THE BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL,EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOTLIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME,SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THE LIABILITY OF SELLER, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, SHALL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE GOODS WITHRESPECT TO WHICH SUCH CLAIM IS MADE. NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT OR ACTIONS RELATED TO SELLER’S INTELLECTUAL PROPERTY.