1. ACCEPTANCE OF ORDER; TERMINATION – Acceptance of any order is subject to credit approval and acceptance of order by The Snorkelboard Factory Ltd. (TSF) and, when applicable, TSF’s suppliers. If credit of the buyer of the goods (“Buyer”) becomes unsatisfactory to TSF, TSF reserves the right to terminate upon notice to Buyer and without liability to TSF.
2. PRICES AND SHIPMENTS – Unless otherwise quoted, prices shall be those in effect at time of shipment, which shall be made F.O.B. shipping point, prepaid and bill.
3. RETURN OF GOODS – Credit may be allowed for goods returned with prior approval. A deduction may be made from credits issued to cover cost of handling.
4. TAXES – Prices shown do not include sales or other taxes imposed on the sale of goods. Taxes now or hereafter imposed upon sales or shipments will be added to the purchase price. Buyer agrees to reimburse TSF for any such tax or provide TSF with an acceptable tax exemption certificate.
5. DELAY IN DELIVERY – TSF is not to be accountable for delays in delivery occasioned by acts of God, failure of its suppliers to ship or deliver on time, or other circumstances beyond TSF’s reasonable control. Factory shipment or delivery dates are the best estimates of our suppliers, and in no case shall TSF be liable for any consequential or special damages arising from any delay in shipment or delivery.
6. WARRANTIES – TSF warrants that all goods sold are free of any security interest and will make available to Buyer all transferable warranties (including without limitation warranties with respect to intellectual property infringement) made to TSF by the manufacturer of the goods. TSF MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE. UNLESS OTHERWISE AGREED IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF TSF.
7. LIMITATION OF LIABILITY – Buyer’s remedies under this agreement are subject to any limitations contained in manufacturer’s terms and conditions to TSF, a copy of which will be furnished upon written request. Furthermore, TSF’s liability shall be limited to either repair or replacement of the goods or refund of the purchase price, all at TSF’s option, and IN NO CASE SHALL TSF BE LIABLE FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES. In addition, claims for shortages, other than loss in transit, must be made in writing not more than five (5) days after receipt of shipment.
8. WAIVER – The failure of TSF to insist upon the performance of any of the terms or conditions of this agreement or to exercise any right hereunder shall not be deemed to be a waiver of such terms, conditions, or rights in the future, nor shall it be deemed to be a waiver of any other term, condition, or right under this agreement.
9. MODIFICATION OF TERMS AND CONDITIONS – These terms and conditions supersede all other communications, negotiations, and prior oral or written statements regarding the subject matter of these terms and conditions. No change, modification, discharge, abandonment, or waiver of these terms and conditions shall be binding upon TSF unless made in writing and signed on its behalf by a duly authorized representative of TSF. No conditions, usage of trade, course of dealing or performance, understanding or agreement, purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound. Any proposed modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein.
10. PAYMENT TERMS – Payment terms be as stated on TSF’s invoice or as otherwise mutually agreed. Visa and MasterCard credit cards will be accepted at point of purchase only.
11. GENERAL PROVISIONS – All typographical or clerical errors made by TSF in any quotation, acknowledgment or publication are subject to correction. This agreement shall be governed by the laws of the State of New York applicable to contracts to be formed and fully performed within the State of New York, without giving effect to the choice or conflicts of law provisions thereof. All suits arising from or concerning this agreement shall be filed in the Circuit Court of New York or the United States District Court for the Eastern District of New York and no other place unless otherwise determined in TSF’s sole discretion. Buyer hereby irrevocably consents to the jurisdiction of such court or courts and agrees to appear in any such action upon written notice thereof.
EXPORTING – Buyer acknowledges that this order and the performance thereof are subject to compliance with any and all applicable United States laws, regulations, or orders. Buyer agrees to comply with all such laws, regulations, and orders, including, if applicable, all requirements of the International Traffic in Arms Regulations and/or the Export Administration Act, as may be amended. Buyer further agrees that if the export laws are applicable, it will not disclose or re-export any technical data received under this order to any countries for which the United States government requires an export license or other supporting documentation at the time of export or transfer, unless Buyer has obtained prior written authorization from the United States Office of Export Control or other authority responsible for such matters.