Vaporpath, Inc. Terms and Conditions of Sale
Vaporpath, Inc. is herein referred to as the Seller and the customer or person or entity purchasing goods and/or services (“Products”) from Seller is referred to as the “Buyer.” These Terms and Conditions, any price list or schedule, quotation, acknowledgment or invoice from Seller relevant to the sale of the Products and all documents incorporated by specific reference herein or therein, constitute the complete and exclusive statement of the terms of the agreement governing the sale of Products by Seller to Buyer. SELLER OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS. Seller reserves the right in its sole discretion to refuse orders.
2. Pricing. Unless otherwise specified in writing by Seller, the price quoted or otherwise specified by Seller shall remain in effect for thirty (30) days. All prices are exclusive of all federal, state and local taxes, use and similar taxes, all import, export or customers duties, tariffs and like charges, transportation and insurance, all of which are to be borne by Buyer.
3. Shipment and Delivery. Shipments are made F.O.B. Seller’s shipping point. Risk of loss or damage and responsibility shall pass from Seller to Buyer upon delivery to and receipt by carrier. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Products for which Buyer has not provided shipping instructions. If the shipment of the Products is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Freight estimates are available upon request. Freight charges may vary between initial estimate and the actual cost incurred at the time of shipment. Seller reserves the right to invoice actual freight charges incurred unless otherwise mutually agreed upon.
4. Product Returns. Seller will accept return of Product from Buyer if (1) the Product has not been opened, modified, or used, (2) the Product is less than 180 days old from date of purchase or is within the shelf life of determined by the manufacturer, whichever period is shorter. A five percent (5%) restock fee shall be assessed to Buyer. Shipping charges to return Product shall be borne by Buyer.
5. LIMITED WARRANTY. Seller warrants to the original purchaser that (1) the products meet the Seller’s published specifications and any additional specification appearing on the face here; (2) Seller has good and sufficient title to the Product, and (3) the Product does not infringe any U.S. patent. THIS IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SELLER WITH RESPECT TO THE PRODUCT AND IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE.
6. LIMITATION OF REMEDY AND LIABILITY. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCT. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC PRODUCTS PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use or revenue, cost of capital or loss or damage to property or equipment. Buyer is responsible for determining the suitability of the Product for Buyer’s intended use. It is expressly understood that any technical advice furnished by Seller with respect to the use of the Products is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s risk.
7. Excuse Of Performance. Seller shall not be liable for delays in performance or for non-performance due to acts of God, war, riot, fire labor trouble, freight embargoes, unavailability of materials or components, explosion, accident, compliance with governmental requests, laws, regulations, orders or action or other unforeseen circumstances or causes beyond Seller’s reasonable control.
8. Assignment. Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, without such consent, shall be void.
9. Inspection/Testing. Buyer, at its option and expense, may inspect and observe the testing by Seller of the Products for compliance with Seller’s standard test procedures prior to shipment, which inspection and testing shall be conducted at Seller’s plant at such reasonable time as is specified by Seller. Any rejection of the Products must be made promptly by Buyer before shipment. Tests shall be deemed to be satisfactorily completed and the test fully met when the Products meet Seller’s criteria for such procedures.
10. Buyer’s Duties. Buyer assumes sole responsibility for determining the suitability of the Product for Buyer’s contemplated use. Buyer represents and warrants it is not relying on Seller for assistance in selecting Products for Buyers. Buyer agrees to comply with all safety policies and end use restrictions in its use and seller of the Product. Buyer further agrees to upon written request from Seller to confirm in writing that Buyer is complying with Seller’s safety policies and end use restrictions. In no event shall Seller be responsible for any damage, injury or loss caused by the misuse of the Product or Buyer’s negligence.
11. Indemnity. Buyer agrees to indemnify, defend and hold Seller harmless from and against any and all claims, loss or damage of any kind whatsoever, including consequential damages, and damages from tort, negligence, strict liability, breach of warranty, breach of contract or other legal theory, along with costs including reasonable attorneys’ fees connected therewith, brought by or on behalf of any person or entity arising out of or relating in any manner to the Products which are the subject hereof. Buyer’s agreement to indemnify, defend and hold Seller harmless is based upon the express understanding that said obligations apply whether such injury or damage be due, or alleged to be due, in whole or in part to the negligence or other liability producing conduct on the part of the Seller.
12. Insurance. Buyer will further secure coverage for the benefit of Seller which names Seller as an insured and which provides dollar one coverage with limits and terms acceptable to Seller, but in no event with limits less than $5 million ($5,000,000) and which insurance will provide for complete defense and coverage to Seller for any and all claims, loss or damage of any kind whatsoever relative to the Products which are the subject hereof and regardless of whether due, or alleged to be due, in whole or in part to the negligence, strict liability, breach of warranty, breach of contract and/or other independent acts of Seller. The insurance required to be provided under this agreement will be primary and any other insurance, self-insured retention, or deductible afforded to Seller shall apply in excess of, and does not contribute with, the insurance required by this Agreement. The insurance provided under this Agreement will give Seller the right to select defense counsel. Moreover, the limits of the insurance required to be provided under this Agreement will not be diluted by legal and/or other costs and expenses that such costs and/or expenses shall be in addition to the policy limits. Further, Buyer agrees that it will secure insurance coverage for contractually assumed obligations to fully insure its obligations under (above paragraph). Buyer shall provide ninety (90) days notice to seller of any change to its insurance coverage which affects the insurance secured in satisfaction of the obligations hereunder.
13. General Provisions. 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, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. 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. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. The interpretation of this agreement and of the rights and obligations of the parties under this agreement, and all questions concerning the validity of this agreement, shall be governed by the laws of the State of Washington. Any suit, action or proceeding brought by either party to enforce any term or provision of this agreement, or to determine the validity of this agreement, or concerning this agreement or the subject hereof in any manner, shall be commenced and maintained solely in state or federal courts having jurisdiction in King County, Washington. The Convention for the International Sales of Products shall not apply to this agreement. 09/2018