1. AGREEMENT TO TERMS: By signing this Purchase Agreement, purchasing on-line from Seller, or accepting delivery of any Product, Customer and/or End User agrees to all Terms and Conditions of this Agreement. End User means the entity or person which actually receives and installs or uses the Product.
2. PAYMENT TERMS: Net amount is due prior to shipment or delivery, unless otherwise noted on this Agreement. If other payment terms are noted, a service charge equal to one percent (1%) per month, an effective annual interest rate of twelve percent (12%), will be added to the net amount of each invoice not paid on the due date. The price payable hereunder is payable in U.S. Dollars at Bellingham, Washington, unless otherwise specified in any applicable purchase order.
3. TAXES: All duties, excise, sales, transfer, personal property and other taxes (whether Federal, State or Local) applicable to the sale, purchase, storage, use or ownership of the Product covered by this Agreement, and for the payment or collection of which Purchaser shall be liable shall be itemized and added to the selling price of such Product or services and shall be paid by the Purchaser, except Seller shall collect sales taxes from an End User in Washington State.
4. FREIGHT: Product shall be shipped by common carrier in accordance with the delivery date. Any additional freight charges and all taxes applicable thereto will be for the account of the Purchaser. Any Product is shipped subject to Purchaser’s then current “End User Terms and Conditions of Sale” and Installation Instructions.
5. SAFETY. Purchaser and/or End User and any agent or party authorized by them to install the Product shall be solely responsible for and shall ensure that proper installation procedures specified by manufacturer and/or provided with the shipment of any Product shall be followed in the installation and use of the Product.
6. LIMITED WARRANTY: Seller assigns to Purchaser and/or End User the manufacturer’s limited warranty that the Product purchased pursuant to this Agreement shall meet all specifications and performance criteria for the Product and shall be free from defects in material and workmanship at the time of delivery under this Agreement.
If Purchaser and/or End User gives Seller written notice of any defect described above of the defective good on or before six (6) months from the date of delivery, then, Seller will, at its election, either:
(a) authorize manufacturer to provide the materials and labor required to correct the defect, or
(b) authorize Purchaser to correct the defect, in which event Seller shall reimburse the actual reasonable costs incurred by Purchaser to provide the materials and labor required to correct the defect, subject to any maximum reimbursements agreed to by the parties;
(c) refund the amount paid by Purchaser and/or End User for the Product.
This warranty shall not apply to any good which:
(a) has been abuses, misused, neglected or damaged;
(b) has been modified or altered without prior written consent of Seller; or
(c) has not been operated in accordance with the standard instructions and specifications of manufacturer.
6.1 Exclusivity. THE WARRANTIES OF SELLER SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, CAPACITY, DURABILITY, RELIABILITY, SAFETY FAILURE OR PERFORMANCE), WITH REGARD TO THE PRODUCT. THE REMEDIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES FOR BREACH OF WARRANTY WITH REGARD TO THE PRODUCT.
6.2 Exclusive Rights and Remedies. THE WARRANTIES, RIGHTS AND REMEDIES OF PURCHASER AND/OR END USER SET FORTH IN THIS AGREEMENT ARE TO THE END USER AND NOT OTHERWISE ASSIGNABLE OR TRANSFERABLE. PURCHASER AND/OR END USER, FOR ITSELF AND ALL USERS OF THE PRODUCT, WAIVES AND RELEASES ALL OTHER WARRANTIES AND LIABILITIES OF SELLER, EXPRESS OR IMPLIED, ARISING IN WHOLE OR IN PART FROM THE FAULT, NEGLIGENCE OR STRICT LIABILITY OF MANUFACTURER OR SELLER, AND ANY CLAIM FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.
6.3 Claim Period. ANY LEGAL ACTION ARISING OUT OF OR INVOLVING ANY PARTIAL OR TOTAL FAILURE, MALFUNCTION OR DEFECT IN ANY OF THE PRODUCT PROVIDED TO PURCHASER AND/OR END USER SHALL BE BROUGHT WITHIN ONE (1) YEAR OF THE OCCURRENCE.
6.4 Limitation of Liability. SELLER’S LIABILITY UNDER THESE TERMS FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO SELLER FOR THE PRODUCT.
7. ENTIRE AGREEMENT: THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND, EXCEPT TO THE EXTENT THE TERMS HEREOF PROVIDE FOR SEPARATE AGREEMENTS BETWEEN THE PARTIES, SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS OR UNDERSTANDINGS, WHETHER WRITTEN OR ORAL. No amendment or waiver of any provision of this Agreement, nor consent to any departure by the Purchaser or Seller therefrom, shall be effective unless the same shall be in writing and signed by authorized agents of both
8.1 Notices. Any notice required to be given under this Agreement by any party to the other shall be in writing and delivered personally or sent postage prepaid by registered or certified mail, return receipt requested.
8.2 Enforcement. The failure of either party at any time to enforce the terms of this Agreement shall not be construed as a waiver of the right or its enforcement. In the event of any dispute, the prevailing party shall be entitled to all costs and attorneys fees.
8.3 Confidentiality. Seller shall keep all data, business and customer records and transactions from Purchaser related to this Agreement strictly confidential and not disclosure such data to any third party without Purchaser’s express written consent.
8.4 Assignment. The rights and obligations of either party in this Agreement shall not be pledged, assigned, or subcontracted without the prior written consent of the other party.
8.5 Choice of Law. This Agreement shall be construed under the laws of the State of Washington. Any dispute or legal claim arising out of this Agreement shall be resolved by binding arbitration under the rules of the American Arbitration Association before a single arbitrator sitting in Bellingham, Washington. In the event there is any dispute involving copyright, trademark or patent rights, the venue and jurisdiction for such action shall be the U.S. Federal District Court sitting in Seattle, Washington. The prevailing party shall receive all costs and reasonable attorneys’ fees.