Elda Noriega General Terms and Conditions of Sale
All apparel, patterns, designs, products or services (collectively the “Products”) furnished or provided by Elda Noriega (hereinafter referred as “Seller”) shall be in accordance with the following terms and conditions:
- ACCEPTANCE. Buyer’s order is binding only when accepted in writing by the Seller. The terms and conditions of sale are only those stated below, which shall constitute the complete agreement between the parties and may not be altered or modified except in writing duly executed by each party.
- DELIVERY. Delivery dates are estimates only and are not guaranteed.
- PRICES. Prices quoted, unless otherwise stated in writing, do not include sales, use, excise or similar taxes or duties. Unless otherwise stated, prices are valid for ten (10) days and for the delivery date specified in the quotatio Revisions to the desired delivery date by the Buyer and delays not due to Seller’s negligence may be subject to escalation of prices at Seller’s sole discretion.
- PAYMENT. Standard payment terms are net 10 (10) days from date of invoic Seller reserves the right to require payment, or the issuance of an irrevocable letter of credit, in advance of shipment. Any amounts not paid when due shall bear a late payment in the amount of 1 ½ % per month or at the highest rate permitted by law (whichever is less), from the date of shipment until paid. Seller reserves a purchase money security interest in each Product shipped, which will be satisfied by payment in full.
- CANCELLATION AND NO RETURN POLICY. No Products may be returned without prior written approval of Seller. Orders placed with and accepted by Seller may not be canceled except upon Seller’s written consent prior to shipment and Buyer’s acceptance of Seller’s cancellation charges which shall protect Seller against all costs and losses. Seller reserves the right to cancel any sale hereunder in Seller’s sole discretion without liability to Buyer (except for refund of monies already paid). All Seller Products are all customized, so Buyer will not have the right to return the Products.
- JURISDICTION. These terms and conditions shall be governed in accordance with the law of the Commonwealth of Pennsylvan All disputes under these terms and conditions shall be resolved by the state or federal courts of the Commonwealth of Pennsylvania and the parties all consent to the jurisdiction of such courts, agree to accept service process by mail, and hereby waive any jurisdiction or venue defenses otherwise available.
- INSPECTION. All Products must be inspected upon recei If any damage is discovered, a claim must be filed with the carrier. A full report of the damage must be forwarded to Seller so that it can arrange for repair or replacement.
- TITLE/SHIPPING. Unless otherwise provided on the face hereof, all Products furnished hereunder will be shipped “Ex-Works (EX-W)” INCOTERMS 2010 and title in, risk of loss, and the right of possession to such goods shall pass to the Buyer upon the Seller’s delivery to carrier at Seller’s facility, and Seller is not responsible for damage or loss in transit, regardless of whether or not Buyer may have the right to reject or revoke acceptance of said Products. Seller can arrange for in-transit insurance at Buyer’s expense, but will not do so without Buyer’s written instructions. Unless otherwise stated, all goods will be shipped freight prepaid and bill Charges for shipping may not reflect net transportation cost paid by the Seller. Buyer shall be responsible for all import requirements of any country into which it seeks to import the Products.
- LIMITATION OF LIABILITY. In no event shall Seller be liable, in contract, tort, strict liability or under any other legal theory, for incidental, indirect, special or consequential damages, including but not limited to lost profits and labor charges, regardless of whether Seller was informed about the possibility of such damages, and in no event shall Seller’s liability exceed an amount equal to the sales price of the particular Product.
- WARRANTY. Seller warrants Products to be free of defects in material or workmanship for a period of sixty (60) days from the original date of purchase. This warranty covers defect of workmanship and materials, but does not cover damage caused by accident, improper care, negligence, normal wear and tear, or the natural breakdown of colors and material through time, exposure or extensive use. If a Product is found to be defective after inspection by Seller, Seller will repair or replace the product with an existing comparable model at Seller’s discretion. Seller is not liable for any damages, losses and/or costs incurred resulting from the loss or usage of the Products.
- INTELLECTUAL PROPERTY. Buyer acknowledges Seller is the owner of brands, trademarks, designs, patents, copyrights and other intellectual property relating to Seller’s Products, and that no right or license is conveyed by Seller to Buyer to manufacture, have manufactured, modify, import or copy such Products. Buyer agrees that it will reference brands of Seller or its affiliates only in connection with the use or sale of Products delivered to Buyer hereunder, and not in connection with the sale of any other Product, except as separately authorized by Seller in writing.
- COPYRIGHT INDEMNITY. If a Product delivered by Seller to Buyer becomes or, in Seller’s opinion, may become the subject of any claim, suit or proceeding for infringement of any copyright, Seller may at its option and expense (i) obtain for Buyer the right to use, lease or sell the Product,(ii) replace the Product, (iii) modify the Product, or (iv) remove the Product and refund the purchase price paid by Buyer less a reasonable amount for use, damage or obsolescence. Seller will not be liable for any infringement arising from any modification of a Product, from any combination of a Product with any other product(s), or from the use of a Product in practicing a process or unintended applications. Seller’s total liability to Buyer will not, under any circumstances exceed the purchase price paid for the allegedly infringing Product. Buyer agrees, at its expense, to protect and defend Seller against any claim of copyright infringement arising from compliance with Buyer’s designs, specifications or instructions and to hold Seller harmless from damages, costs and expenses attributable to any such claim.
- INDEMNITY. Buyer agrees to defend, indemnify and hold the Seller (and its agents, representatives, employees, officers, related companies, successors and assigns, and customers) harmless from all claims, demands, actions, damages, and liabilities (including attorney’s fees and consequential and incidental damages) arising out of any injury (including death) to any person or damage to any property in any way connected with any act or omission of Buyer, its agents, employees, or subcontractors.
- EXCUSABLE DELAYS. Seller shall not be liable nor in breach or default of its obligations under the Contract to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond its reasonable control, including, but not limited to, acts of God, fire, terrorism, war (declared or undeclared), epidemics, material shortages, insurrection, acts or omissions of Buyer or Buyer’s suppliers or agents, any act (or omission) by any governmental authority, strikes, labor disputes, transportation shortages, or vendor non-performance. If Seller is delayed by any acts or omissions of Buyer, or by the prerequisite work of Buyer’s other contractors or suppliers, Seller shall be entitled to an equitable price and performance adjustment.
- WAIVER. No failure to exercise and no delay in exercising on the part of Seller any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise of any right, power or privilege hereunder preclude further exercise of the same right, power or privilege.
- VALIDITY. In the event any provision or any part or portion of any provision of these terms and conditions shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision hereof.
- ELECTRONIC MEDIA. Buyer agrees that Seller may scan, image or otherwise convert these terms and conditions into an electronic format of any nature. Buyer agrees that a copy of these terms and conditions produced from such electronic format is legally equivalent to the original for any and all purposes, including litigation.