Terms and Conditions
Please read these Terms and Conditions (the “Agreement”) carefully. Your use of the Website (as defined below) constitutes your consent to this Agreement.
This Agreement is between you and Havwoods International Inc. concerning your use of (including any access to) the Website currently located at https://www.havwoods.com/us.
BY USING THE WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT. IF YOU ARE USING THE WEBSITE ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, THEN YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THIS AGREEMENT.
- Definitions. In these Conditions, the following definitions apply:
means bespoke or custom-made Products supplied by the Supplier specifically for the Customer to the Customer’s Specification.
a day other than a Saturday or Sunday or a day on which banks in New York City are authorized or required by law to open.
the terms and conditions set out in this document, the Agreement, as amended from time to time in accordance with Section 16.
the contract between the Supplier and the Customer for the sale and purchase of the Products, together with these Conditions and any relevant attachments, exhibits or supplements.
the person or company or organization which purchases the Products from the Supplier.
Force Majeure Event
has the meaning given in Section 12.
the retail premises, business premises or other location in which the Wood Floor Products are to be installed.
Luxury Vinyl Tile Products
means the luxury vinyl tile products (if any) supplied by the Supplier to the Customer.
the Customer's order for the Products.
means any Products other than the Wood Floor Products supplied by the Supplier to the Customer.
the products (including the Wood Floor Products, the Other Products (or any part of them) set out in the Order.
any specification for the Products, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Havwoods International Inc., a Delaware corporation.
Means any trade name, business name, service mark, or trademark, used or owned by the Supplier whether registered or otherwise.
means our making available the ability to purchase or otherwise obtain certain Products through sales channels such as telephone orders, mail orders, or our physical stores.
means the Supplier’s website at https://www.havwoods.com/us
Wood Floor Product
means the wood flooring products (if any) supplied by the Supplier to the Customer.
In these Conditions, the following rules apply:
- A person includes an individual, corporate, or unincorporated organization (whether or not having separate legal existence).
- A reference to a party includes its personal representatives, successors, or assigns.
- A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any related legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and not limiting.
(e) A reference to writing or written includes electronic and facsimile transmissions.
- BASIS OF CONTRACT
2.1 These Conditions apply to the Contract, exclusive of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier receives the Order and transmits a confirmatory email accepting the Order (“Order Confirmation”), at which point the Contract shall come into existence.
2.4 The Supplier shall be entitled to reject the Order at its sole discretion and if it elects to do so (for example due to unavailability of the Products requested by the Customer) it shall notify the Customer of this in writing and will not process such part of the Order. In this instance, the Customer will not be charged for the Product. If the Customer has already made full or part payment for the Products, the Supplier shall refund such amounts as soon as reasonably practicable.
2.5 Due to ongoing global supply shortages, production and transportation delays outside of our control may occur. Supplier will at all times make its best efforts to ensure all delivery dates conform to the delivery dates referenced in the order acknowledgement. If, for reasons that we cannot control, delays occur or are expected, we will promptly notify the customer with a revised date for delivery, or suggest alternative remedies.
2.6 The Contract constitutes the entire agreement between the parties and supersedes All prior or oral or written representations and agreements. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance, or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.7 Any samples, drawings, images, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogs, websites (including the Website) or brochures are produced solely for illustrative purposes for viewing the Products described in them. They shall not form part of the Contract or have any contractual force. Customer may not use samples, drawings, images, descriptive matter, or advertising produced by the Supplier or display such drawings, images, descriptive matter in print or the internet without Supplier’s express written permission.
2.8 The Customer must notify the Supplier upon placing the Order if it requires that the profiles of tongue and groove in the Wood Floor Products match.
2.9 Although the Supplier has made every effort to accurately display the color of the Products on the Website and in its catalogs, the Supplier cannot guarantee that the Customer’s display of the colors or the Customer’s printing of the catalogs will accurately reflect the color of the Products and the Product may slightly vary from images on the Website or in the catalogs.
2.10 Due to the nature of the Wood Floor Products, the Customer hereby agrees, acknowledges, and accepts that:
- the moisture content of the Wood Floor Products will vary from batch to batch;
- the profiles of tongue and groove will vary from batch to batch; and
- the color and consistency of the Products may vary from any samples and is subject to change as a result of the passage of time and exposure to sunlight.
3.1 The quantity and description of Products shall be set forth in the Supplier's quotation or Order Confirmation.
3.2 To the extent that the Products are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.4 The Supplier shall be entitled to supply an alternative Product to match as closely as possible to the Products that the Customer has ordered. The Supplier will provide the Customer with reasonable notice as soon as this becomes apparent, and the Customer will have the option to accept the alternate Product or cancel the Order.
3.5 The Customer shall be wholly responsible for determining whether the Products are fit for purpose where they are to be used for a particular or special purpose and whether they are to be used for a particular or special purpose and whether they are suitable for the intended Installation Location and the Customer agrees, and acknowledges and accepts that the Supplier is a Supplier of the Products only and nothing is to be taken as a warranty, representation or otherwise that the Supplier has provided any design advice or installation instruction upon which the Customer is entitled to place any reliance.
3.6 The Supplier shall not be responsible for installing the Products and shall have no liability for any damage to the Products or any other property, person or otherwise caused during the installation of the Products. Any guidelines or instructions that the Supplier may provide in relation to installation constitute a manufacturer’s guide only and are not specific to the Installation Location or any individual Products and should not be relied upon for the proper installation of the Products, which should only be carried out by an appropriately skilled professional.
3.7 The Customer shall be responsible for ensuring that the Products are fully and properly maintained, including but not limited to:
(a) The installation, sanding, and finish of the Products in accordance with any manufacturer’s guidelines or instructions, or absent any from the manufacturer, The National Wood Flooring Association Installation Guidelines;
(b) by ensuring that the Products are maintained at the appropriate humidity levels;
(c) by ensuring that the Products are properly and adequately acclimated to conditions (e.g., temperature, humidity levels) at the Installation Location before installation; and
(d) by ensuring that the Wood Floor Products are adequately protected against damage (including but not limited to scratches, dents, and scuff marks) including but not limited to by sanding, sealing, and using cloth furniture protectors in accordance with manufacturers guidance or instructions or guidance provided by the installer of the Wood Floor Products.
(e) Other Products may be made available on the Website. The availability through the Website of any listing, description or image of Other Products does not imply our endorsement of such Product or affiliation with the provider of such Product. We make no representations as to the completeness, accuracy or timeliness of listings, descriptions, or images (including any features, specifications and prices contained therein) of Other Products. Such information and the availability of any such Product is subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Other Products, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the possession, use and sale of any Product.
4.1 The Supplier shall ensure that:
(a) each delivery of the Products is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any); and, if the Order is being delivered in installments, the outstanding balance of Products remaining to be delivered; and
(b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 Subject to Section 4.3, the Supplier shall deliver the Products to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) on such date as the Supplier shall notify the Customer in advance of the delivery date (“Delivery Date”).
4.3 If the Supplier has agreed in advance upon the Customer placing the Order or as confirmed in the Order Confirmation, the Customer may collect the Products from the Supplier's premises or such other location as may be advised by the Supplier prior to delivery (“Collection Point”).
4.4 Delivery of the Products shall be completed on the Products' arrival at the Delivery Location or upon the Supplier making the Products available for collection from the Collection Point (as applicable).
4.5 Subject to Section 4.6, the Supplier does not handle or unload the Products on arrival at the Delivery Location and does not load the Products at the Collection Point. The Customer must ensure that adequate assistance and personnel are available to unload the Products upon delivery.
4.6 The Supplier can supply a premium, dedicated delivery service, pursuant to which the Supplier will arrange for the Products to be unloaded (but not, for the avoidance of doubt, installed) at the Delivery Location (“Dedicated Delivery Service”) provided that the Customer requests the Dedicated Delivery Service in the Order
4.7 Subject to Section 4.8, if the Supplier fails to deliver any or all of the Products (“Undelivered Products”), its liability shall be limited, at its election, to one of the following:
(a) replacing the Undelivered Products within a reasonable amount of time; or
(b) issuing a credit note against the invoice raised for the Undelivered Products; or
(c) where the Customer has paid in advance for the Undelivered Products, the Supplier may elect to reimburse the Customer for the price of the Undelivered Products.
4.8 The Supplier shall have no liability for any failure or delay in delivering the Products where:
(a) such failure or delay is caused by the Customer's failure to comply with its obligations under the Contract, including a failure to:
(i) collect the Products in accordance with Section 4.3; and/or
(ii) provide the Supplier with the correct delivery address or any other relevant instructions; and/or
(b) the failure or delay has been caused by a Force Majeure Event.
4.9 If the Customer fails to take delivery of the Products or collect the Products from the Collection Point on the Delivery Date, then, except where such failure or delay is caused by the Supplier's failure to comply with its obligations under the Contract:
(a) delivery of the Products shall be deemed to have been completed at 9:00 am on the Delivery Date (“Deemed Delivery”) and responsibility for the Products shall pass to the Customer upon Deemed Delivery;
(b) the Supplier shall store the Products until delivery takes place, and charge the Customer for related costs and expenses (including, without limitation, storage, and insurance);
(c) if the Customer fails to accept delivery of the Products within 4 weeks of the date of Deemed Delivery, the Supplier may resell or otherwise dispose of the Products (or any part of them) to any third party, without any liability to the Customer.
4.10 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.11 The Customer shall not be entitled to reject the Products if the Supplier delivers up to and including 5% more or less than the quantity of Products ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Products was delivered.
4.12 The Supplier may deliver the Products by installments, which shall be invoiced and paid for separately. Each installment shall constitute a separate Contract. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.
4.13 The type and quantity of Products recorded by the Supplier upon dispatch from its premises shall be conclusive evidence of the type and quantity received by the Customer upon Delivery, however the Customer is responsible for checking the Products upon Delivery and ensuring that it has been supplied with the correct Products (including but not limited to, the correct color), before installing the Products at the Installation Location.
5.1 Certain Products benefit from a manufacturer’s guarantee. For details of the applicable terms and conditions, the Customer should refer to the manufacturers guarantee provided with the Products.
5.2 For products which do not have a manufacturer’s guarantee, the Supplier provides a warranty that the Products shall be free from material defects in design, material, and workmanship, conform in all material respects with their description and be fit for any purpose expressly held out by the Supplier and remain so for the following applicable “warranty periods”:
- in the case of Wood Floor Products, for 12 months from the Delivery Date;
- in the case of Luxury Vinyl Tile Products, for 12 months from the Delivery Date;
- in the case of other Products, until the expiry of the earlier of the “used by”, “expiry”, or “best before” period stated on the packaging, labelling or other documentation accompanying the Other Products on delivery, however, the warranty contained in this Section 5.2, does not apply in the circumstances in Section 5.4.
5.3 Subject to Section 5.4, if:
(a) the Customer gives notice in writing to the Supplier during the applicable warranty period at Section 5.2 above, within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in Section 5.2;
(b) the Supplier is given a reasonable opportunity of examining such Products; and
(c) the Customer (if asked to do so by the Supplier) returns such Products to the Supplier's place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
5.4 The Supplier shall not be liable for the Products' failure to comply with the warranty set out in Section 5.2, in any of the following events:
(a) the Customer makes any further use of such Products after giving notice in accordance with Section 5.3;
(b) the defect arises because the Customer failed to follow the Supplier's user or manufacturer's guidelines, oral or written instructions as to the storage, commissioning, installation, use, protection, and maintenance of the Products or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer (including but not limited to in the case of Bespoke Products);
(d) the Customer or any third party alters or repairs such Products without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions, accident, or negligence by the Customer or any third party including but not limited to upon the installation of the Products; or
(f) the Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 Except as provided in this Section 8, the Supplier shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in Section 5.2.
5.6 These Conditions shall apply to any repaired or replacement Products supplied by the Supplier.
6. TITLE AND RISK
6.1 The risk in the Products shall pass to the Customer upon the earlier of the arrival of the Products at the Delivery Location (prior to unloading) or the Collection Point (as applicable) or Deemed Delivery.
6.2 Subject to clause 6.4, title to the Products shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for:
(a) the Products; and
(b) any other goods that the Supplier has supplied to the Customer,
in which case title to the Products shall pass at the time of payment of all such sums.
6.3 Until title to the Products has passed to the Customer, the Customer shall:
(a) store the Products (at no cost to the Supplier) separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) not install or permit the installation of the Wood Floor Products at the Installation Location;
(d) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery and upon the Supplier's request, produce such policies of insurance to the Supplier;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 11.2; and
(f) give the Supplier such information relating to the Products as the Supplier may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Products. However, if the Customer resells the Products before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Products shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 11.2, then, without limiting any other right or remedy the Supplier may have:
(a) the Customer's right to resell the Products or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Products in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
- PRICE AND PAYMENT
7.1 The price of the Products shall be as quoted by the Supplier in writing or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labor, materials, and other manufacturing costs);
(b) any request by the Customer to change the Delivery Date, quantities or types of Products ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Products is exclusive of the costs and charges of packaging, insurance, loading, unloading and transport of the Products ("Additional Payments"), which shall be invoiced to the Customer.
7.4 The price of the Products is exclusive of amounts in respect of sales tax which shall be indicated on the relevant order page of the Website.
7.5 [TBC] Where the Supplier has agreed that the Products shall be delivered to an International Delivery Location, the price of the Products does not include any relevant import duties, taxes or any other fees associated with such delivery (“International Payments”), and the Customer shall be responsible for all such International Payments in accordance with clause
7.6 If the Customer has requested the Dedicated Delivery Service in accordance with clause 4.6, there will be an additional charge for this. The Supplier will notify the Customer of such charge in the Order Confirmation.
7.7 The price of the Products does not include delivery charges. Delivery charges are as quoted by the Supplier in writing.
7.8 Subject to clause 7.11, if the Customer has a current credit account with the Supplier which has not been cancelled or suspended, the Supplier shall invoice the Customer for the Products, Additional Payments and any applicable International Payments on or at any time after the day following the date upon which the Products are dispatched to the Customer for delivery or made available for collection at the Delivery Point (as applicable).
7.9 If the Customer has a current credit account, the Customer shall pay the invoice in full and in cleared funds pursuant to the mutually agreed upon payment terms. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.10 Except as otherwise agreed by the Supplier in writing, and subject to clause 7.11, if the Customer does not have a current credit account, the Supplier will invoice the Customer for the price of the Products, Additional Payments and any applicable International Payments at any time after the Customer has placed the Order and payment must be made in full and cleared funds to the bank account nominated in writing by the Supplier, and in any event prior to delivery of the Products. If the Customer does not have a current credit account, then the Supplier shall not dispatch the Products for delivery or allow collection of them until it has received payment in full and cleared funds.
7.11 If the Customer’s Order includes any Bespoke Products, a non-refundable payment of 50% of the price of the Bespoke Products must be made at the time the Customer places its Order. The Supplier shall be entitled to invoice the Customer for the balance at any time after the Customer has placed the Order, and except as otherwise agreed by the Supplier in writing and subject to clause 7.10, payment must be made to the Supplier in full and cleared funds to the Bank account nominated by the Supplier in writing prior to delivery of the Bespoke Products. The Supplier shall not dispatch the Bespoke Products for delivery or allow collection of them until it has received payment in full and cleared funds.
7.12 For the avoidance of doubt, where the Customer has ordered Products, any deposit paid by the Customer, in accordance with clause 7.11 or otherwise, shall be non-returnable in the event that the Customer subsequently cancels or terminates the Order or fails, for whatever reason, to collect or take delivery of the Products within a period of 6 weeks from the Delivery Date.
7.13 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then:
(a) the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the prime rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
(b) the Supplier reserves its right to recover all of its costs in pursuing the debt (including legal fees) from the Customer.
7.14 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
- THE SUPPLIER'S PROPRIETARY RIGHTS.
The Supplier’s trade names, trademarks and service marks, among others, include Havwoods and Plusfloor. All trade names, trademarks, service marks and logos on the Website not owned by us are the property of their respective owners. You may not use the Supplier’s trade names, trademarks, service marks or logos in connection with any product or service that is not the Supplier’s, or in any manner that is likely to cause confusion. Nothing contained on the Website should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the Supplier.
- DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE WEBSITE AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) THE SUPPLIER DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE WEBSITE AND ANY PRODUCTS AND THIRD-PARTY MATERIALS TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. THIS SECTION DOES NOT AFFECT ANY EXPRESS WARRANTIES THAT THE SUPPLIER MAY PROVIDE DIRECTLY TO YOU IN WRITING WITH RESPECT TO THE PRODUCTS PURCHASED THROUGH THE WEBSITE.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH THE SUPPLIER AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”).
While the Supplier tries to maintain the timeliness, integrity, and security of the Website, we do not guarantee that the Website is or will remain updated, complete, correct, or secure, or that access to the Website will be uninterrupted. The Website may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Website. If you become aware of any such alteration, please email firstname.lastname@example.org and provide a description of such alteration and its location.
- LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: THE SUPPLIER WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION TRANSMITTED VIA THE WEBSITE (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF SUCH INFORMATION), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE SUPPLIER WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE WEBSITE OR FROM ANY OF THE PRODUCTS OR THIRD PARTY MATERIALS; (B) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE OR ANY OF THE PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE WEBSITE; AND (C) THE MAXIMUM AGGREGATE LIABILITY OF THE SUPPLIER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF: (1) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO THE SUPPLIER; AND (2) TEN U.S. DOLLARS ($10).
ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH THE SUPPLIER AND THE AFFILIATED ENTITIES.
Applicable law in certain states may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.
- TERMINATION AND SUSPENSION
11.1 If the Customer becomes subject to any of the events listed in clause 11.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
11.2 For the purposes of clause 11.1, the relevant events are if the Customer:
(a) becomes insolvent, or admits in writing its inability to pay its debts as they mature, or makes a general assignment for the benefit of creditors;
(b) suffers or permits the appointment of a trustee or receiver for all or any of its assets, unless such appointment is vacated or dismissed within 60 days from the date of such appointment;
(c) files any petition as a debtor under any provision of the U.S. Bankruptcy Code or any state or other Law relating to insolvency;
(d) has any such petition filed against it, unless such petition and all related proceedings are dismissed within 60 days of such filing;
(e) is adjudicated insolvent or bankrupt;
(f) has wound up or liquidated; or
(g) ceases to carry on its business.
- FORCE MAJEURE
Neither party shall be liable for any failure or delay in performance hereunder if such failure or delay is caused, in whole or in part, by fire, flood, earthquake, riot, war, invasion, pandemic, embargo or any similar event beyond the reasonable control of the Party or its Affiliates (each, a “Force Majeure Event”). In the event of a Force Majeure Event, either Party shall promptly notify the other Party of the Force Majeure Event and shall use commercially reasonable efforts to remove the Force Majeure Event such that performance may be resumed. Each party represents and warranties that as of the date of this Agreement a Force Majeure Event is not ongoing with respect to the Agreement.
- RULES OF CONDUCT
In connection with the Website, you must not:
- Post, transmit or otherwise make available through or in connection with the Website any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the Supplier.
- Post, transmit or otherwise make available through or in connection with the Website any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment.
- Use the Website for any purpose that is fraudulent or otherwise tortious or unlawful.
- Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Website except as expressly authorized herein, without the Supplier’s express prior written consent.
- Reverse engineer, decompile or disassemble any portion of the Website, except where such restriction is expressly prohibited by applicable law.
- Remove any copyright, trademark or other proprietary rights notice from the Website.
- Frame or mirror any portion of the Website, or otherwise incorporate any portion of the Website into any product or service, without the Supplier’s express prior written consent.
- Systematically download and store content of the Website.
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape”, “data mine” or otherwise gather content from the website or reproduce or circumvent the navigational structure or presentation of the Website, without the Supplier’s express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Website’s root directories, The Supplier grants to the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. The Supplier reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
- In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, the Supplier has adopted a policy of terminating and barring, in appropriate circumstances and at the Supplier’s sole discretion, Website users who are deemed to be repeat infringers. The Supplier also reserves the right, at its sole discretion, to limit access to the Website and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
14.1 Assignment and other dealings
- The Supplier may at any time assign, transfer, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract.
- The Customer may not assign, transfer, mortgage, subcontract, or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Section, and shall be delivered personally, sent by pre-paid first-class post or other next working day delivery service, commercial courier or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Section 16.2(d); if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the third Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission provided that such email was sent to the correct email address of the intended recipient and not recalled, or a message of non-delivery received.
- The provisions of this Section shall not apply to the service of any proceedings or other documents in any legal action.
- If you believe that your work has been copied and is accessible on the Website in a way that constitutes copyright infringement, you may notify the Supplier by providing the following information (as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. § 512) to email@example.com
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- A description of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Supplier to locate the material;
- Information reasonably sufficient to permit the Supplier to contact the complaining party, such as an address, telephone number and an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Inquiries that do not comply with all of the requirements of 17 U.S.C. § 512 may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under 17 U.S.C. § 512(f).
14.3 Severance. If any provision hereof shall be held invalid or unenforceable, such action shall be strictly construed and shall not affect the validity or effect of any other provision hereof, as long as the remaining provisions, taken together, are sufficient to carry out the overall intentions of the Parties as evidenced hereby.
14.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.5 Third-party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
Except as set out in these Conditions, no modification of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
You agree to defend, indemnify and hold harmless the Supplier, its independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities, and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to any content you post, store or otherwise transmit on or through the Website or your use of or inability to use the Website, including without limitation any actual or threatened suit, demand or claim made against the Supplier and/or its independent contractors, service providers, employees, directors or consultants, arising out of or relating to the content, your conduct, your violation of this Agreement or your violation of the rights of any third party.
- GOVERNING LAW
READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND IMPACTS HOW CLAIMS YOU AND THE SUPPLIER MAY HAVE AGAINST EACH OTHER ARE DETERMINED.
17.1 Any dispute or claim relating in any way to this Agreement or previous versions of this Agreement, your use of the Website, or any products or services sold or distributed by the Supplier or through the Website, shall be governed by and construed in accordance the laws of the State of New York without regard to the principles of conflicts of law.
17.2 Unless you and the Supplier agree otherwise, any legal suit, action or proceeding arising out of or related to this Agreement or previous versions of this Agreement, your use of the Website, or any products or services sold or distributed by the Supplier or through the Website, shall be instituted exclusively in the federal or state courts located in New York County, New York. You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
17.3 You and the Supplier agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action. Unless both you and the Supplier agree otherwise, a court may not join more than one party's claims and may not adjudicate or determine any form of a representative, class, or consolidated proceeding. The court may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party bringing the claim, if such relief is warranted by the facts and law. Any relief awarded by the court will not affect other customers of the Supplier.
17.4 Both you and the Supplier each waive any right to a jury trial. You and the Supplier also both agree that you or the Supplier may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
- INFORMATION OR COMPLAINTS
If you have a question or complaint regarding the Website, please email us at firstname.lastname@example.org. You may also contact us by writing to the Supplier, Attn: Customer Service, 151 West 18th Street, New York, NY 10011, or by calling us at (347) 523-8934 . Please note that email communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your email correspondence with us.
- JURISDICTIONAL ISSUES
The Website is controlled or operated (or both) from the United States and is not intended to subject the Supplier to any non-U.S. jurisdiction or law. The Website may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Website is at your own risk, and you must comply with all applicable laws, rules, and regulations in doing so. We may limit the Website’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
- EXPORT CONTROLS
You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified.
- CALIFORNIA TRANSPARENCY IN SUPPLY CHAINS ACT (SB 657) DISCLOSURE
The Supplier is providing the following disclosure in compliance with The California Transparency in Supply Chains Act of 2010 (SB 657), which requires that companies disclose their efforts to eradicate slavery and human trafficking from their direct supply chains.
- The Supplier requires that vendors certify that they will comply with our Vendor Code of Conduct, which prohibits our vendors from using child labor or involuntary labor. Our Vendor Code of Conduct also requires that vendors conduct their operations in accordance with all laws applicable to their businesses.
- We review the terms of our Vendor Code of Conduct with all of our suppliers and conduct periodic reviews of their facilities in order to confirm that they are in compliance with all required policies.
- We train our employees who are responsible for procuring products on the importance of confirming that our vendors comply with the Vendor Code of Conduct, including its prohibitions on child labor and involuntary labor. We also train our employees to identify and respond to concerns about labor practices in the supply chain that might arise from time to time.
- In the event that a vendor were to violate our Vendor Code of Conduct, we would have the option to terminate our business relationship with that vendor or take other actions with that vendor to remediate any problems that had been identified.