THE TERM “SELLER” as used herein shall mean XMATTER LLC, and may be variously referred to as “us” or “our.” The “Purchaser” as used herein shall mean the buyer and may be variously referred to as “you” or “your.” Our acceptance of your order is contingent upon these Terms and Conditions of Sale, and, even if you do not sign and return this document, your acceptance of delivery of goods we ship hereunder shall serve as your Purchase Order and Terms and Conditions of Sale that this document constitutes the final, definite, complete and exclusive Purchase Order and Terms and Conditions of Sale between us with respect to the goods. There are no oral or written, express or implied representations, affirmations, promises, commitments, contracts, understandings or Purchase Order and Terms and Conditions of Sales other than those set forth in these Terms and Conditions of Sale. All proposals, negotiations, representations, affirmations, promises, commitments, contracts, understandings or Purchase Order and Terms and Conditions of Sales, if any, made at any time are superseded by these Terms and Conditions of Sale and merged herein. Seller expressly objects to any additional or conflicting terms in your Purchase Order or your other documentation and those additional or conflicting terms, if any, shall not be deemed accepted by Seller unless Seller’s acceptance is in writing and specifically refers to each such additional or conflicting term.
2. Additional Documents
All specifications, drawing, notes, instructions, notices and technical data referred to in this Purchase Order are incorporated herein by reference and all references in this Purchase Order to “provided for herein,” “set forth herein” and the like shall be deemed to include such additional documents and data.
This Purchase Order may be accepted only in accordance with the terms and conditions set forth herein. No condition stated by Purchaser in accepting or acknowledging the Purchase Order shall be binding upon Seller if in conflict with, inconsistent with, or in addition to, the terms and conditions of this Purchase Order and all such conflicting inconsistent and additional terms and conditions are hereby expressly rejected. This Purchase Order becomes a binding contract when accepted by Seller, such acceptance to be evidenced by Seller’s acknowledgment or by Seller’s commencement of performance hereunder. Shipment of any part of the goods or the furnishing of any part of the services provided for herein shall constitute acceptance of this Purchase Order upon the terms herein, and any such acceptance is expressly limited to the terms and conditions of this Purchase Order.
Except as expressly set forth in this Purchase Order and to the maximum extent permitted by applicable law, Seller expressly disclaims all other warranties, conditions or representations, express or implied, statutory or otherwise, regarding the goods or other services provided by Seller hereunder, including any implied warranties or conditions of merchantability, satisfactory or merchantable quality and fitness for a particular purpose, or those arising from a course of dealing or usage of trade.
The price is as stated in the online order form. Payment is due immediately upon placement of order. Invoices not paid by the due date will have a 1.5 % per month late payment charge assessed against any unpaid balance from the due date of the invoice until the date of payment. Seller reserves the right to disallow any pricing discounts or hold any shipment during any period when outstanding invoices become or remain past due.
Seller may at any time, or from time to time, change or substitute materials. Such changes will be valid if they are of reasonably similar quality to the substituted goods. Purchaser may by written notice, request changes in drawings, specifications, descriptions, shipping instructions, quantities and/or delivery schedules. Acceptance of any such change must be in writing by the Seller. If such acceptance results in an increase or decrease of the cost of, or time required for, performance of this Purchase Order, an equitable adjustment will be made by Seller and evidenced by a written amendment to this Purchase Order.
7. Delivery Schedule
Seller shall make reasonable efforts to deliver Products in the quantity and at the time specified by the Purchaser in this Purchase Order. Seller may, from time to time, make changes in scheduled deliveries or may direct the temporary suspension thereof. These changes shall not constitute material changes to this Purchase Order.
8. Termination at Option of Seller
a. Time is of the essence in this Purchase Order. Seller may by written notice of default to Purchaser (a) terminate the whole or any part of this Purchase Order if Purchaser fails to perform any provision within the time specified herein or any extension thereof; and does not cure such failure within a period of ten (10) days or such longer period as Seller may authorize in writing, after receipt of notice from Seller specifying such failure. As an alternate remedy, and in lieu of termination for default, Seller, at its sole discretion, may elect (1) to extend the time for payment by Purchaser; or (2) to waive other deficiencies in Purchaser’s performance, in which case an equitable increase in the Purchase Order price shall be negotiated.
b. The rights and remedies of the Seller provided in this paragraph 8 shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Purchase Order.
9. Modification of Purchase Order
This Purchase Order together with all written instructions issued hereunder, contains the complete and final agreement between Purchaser and Seller, and no agreement or other understanding in any way purporting to modify the terms and conditions hereof shall be binding upon Seller unless agreed to by Seller in writing on or subsequent to the date of this Purchase Order.
a. Transportation — Seller shall use commercially reasonable efforts to route shipments in accordance with Purchaser’s written instructions. Any transportation charges paid by Seller with respect to which Seller is entitled to reimbursement shall be added to Seller’s invoice as a separate item and the receipted freight bill shall be attached thereto.
b. Risk of loss — Unless the Purchase Order expressly states otherwise, all goods shall be shipped FOB Seller’s shipping point. Purchaser is responsible for, and assumes all risk of loss or damage to, goods pursuant to this Purchase Order, from any cause, upon and after delivery by Seller to a carrier at Seller’s shipping point.
a. Acceptance or rejection of goods, under this Purchase Order shall be made promptly after delivery, except as otherwise provided in this Purchase Order. Failure to reject items within ten (10) days shall constitute acceptance of said goods.
b. Payment shall constitute acceptance of goods under this Purchase Order.
Prices for goods specified herein are exclusive of all city, state and federal taxes, including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes. Purchaser agrees to pay such taxes directly or to reimburse Seller for all such taxes, whether imposed on Purchaser, required to be collected by Seller, or imposed on goods or on Seller in connection with this Purchase Order. Wherever applicable, such tax or taxes shall be added to the invoice as a separate charge or invoiced separately.
13. Waiver of Breach
The waiver of a breach or default under this Purchase Order shall not be interpreted to constitute waiver of any subsequent breach or default, and shall not act to amend or negate the rights of the parties hereto.
This Purchaser and Seller are independent contractors of one another. Nothing herein shall be deemed to create any relationship of agency, partnership or joint venture between the Purchaser and Seller.
The Purchaser shall not assign, or otherwise transfer, directly or indirectly, its rights under this Purchase Order, by operation of law or otherwise, including in the case of merger, acquisition of greater than fifty percent (50%) interest in the Purchaser by any other person or the sale of the Purchaser’s assets, without the prior written consent of the Seller, and any such attempted assignment or transfer shall be void and of nor force or effect and shall result in the immediate and automatic termination of this Purchase Order. Subject to the foregoing, this Purchase Order shall be binding upon and shall inure to the benefit of the parties hereto, and their successors and assigns. Seller may assign all its rights and obligations under this Purchase Order. Seller may assign monies due and those to become due under this Purchase Order.
16. Governing Law
This Purchase Order shall be construed, interpreted and enforced in accordance with the laws of the State of Ohio.
The Purchaser shall defend, indemnify and hold harmless the Seller against claims of tangible damage or injury to property or persons, or any other claims whatsoever, to the extent caused by the breach of Purchaser of any of its covenants, representations and warranties under this Purchase Order or by the negligence or willful conduct of the Purchaser or its agents. The Purchaser shall defend, indemnify and hold harmless the Seller against any claims, losses, damages, and liability incurred by Seller and arising from claims of infringement of any patent, copyright, trade secret or other intellectual property of any third party arising from Purchaser’s use of the goods in breach of this Agreement and not otherwise expressly authorized by Seller in writing. The Purchaser agrees to indemnify, defend and hold harmless the Seller from any and all claims, regardless of by whom such claim or claims may be asserted, for personal injury or property damage or otherwise that may result directly or indirectly from the use, possession or ownership of the goods or from the services provided by Seller pursuant to this Purchase Order.
18. Limitation of Liability
Except as expressly provided for in this Purchase Order, Seller’s liability to the Purchaser or any other third party, for a claim of any kind arising as a result of, or related to the goods or services provided hereunder, whether in contract, in tort (including negligence or strict liability), under any warranty, or otherwise, shall be limited to monetary damages and the aggregate amount thereof for all claims shall in no event exceed an amount equal to the amount paid or payable by the Purchaser to the Seller under this Purchase Order. Under no circumstances shall Seller by liable to the Purchaser or any third party for indirect, special or consequential damages (including lost profits), even if Seller has been advised of the possibility of such damages, or for warranties granted by the Purchaser to any third party. The Purchaser acknowledges and agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. No action, regardless of form, arising under this Purchase Order may be brought by the Purchaser more than one year after the occurrence of the events which gave rise to the cause of action.
19. Proprietary Policy
No proprietary data, which includes design and engineering data, know-how and information, whether patentable or not, technical information, prints, samples and any other information disclosed to the Purchaser by the Seller in connection with this Purchase Order—including the purchase documents, or Seller’s intent to sell—will be disclosed by Purchaser in any way, shape or manner to any person, firm or organization.
Seller reserves the right, at its option, either to suspend shipments or materials covered by this Purchase Order or to cancel this Purchase Order, in whole or in part, at any time where such suspension or cancellation is caused by, or reasonably results from United States Government orders or requirements, embargos, acts, regulations, directives of any civil or military authorities, acts of the public enemy, inability to secure transportation facilities, strikes, differences with workmen, accidents at Seller’s work or other contingencies, whether similar or dissimilar, to the foregoing enumerates, beyond the Seller’s reasonable control.
If the parties are unable to resolve a dispute arising out of this Purchase Order, the parties shall submit to binding arbitration of the dispute. Arbitration proceedings shall take place in Mahoning County, Ohio and be conducted in accordance with the AAA rules. The arbitration panel shall consist of three members. The arbitration hearing shall last no longer than (1) day, and the panel’s decision shall be final and shall bind the parties. The time period for the entire arbitration proceeding from the date notice is given to the date of final determination shall not exceed 60 days. The cost of arbitration shall be borne by either or both parties, as the arbitration panel may determine. A party shall enforce the arbitration panel’s award by a judgment obtained in a state or federal court having jurisdiction. A party may enforce a judgment, thus obtaining preliminary injunctive relief from a court of law in any jurisdiction, pending the outcome of an arbitration proceeding. The arbitrators shall not, however, in the case of a dispute between the parties not involving a third party claim, be empowered to award damages in excess of compensatory damages.
22. Rules and Regulations of XMATTER LLC and Throwflame.com.
In exchange for participation in the activity and use of any product purchased from Xmatter LLC, Purchaser agrees to the following:
To observe all posted or published rules and warnings, and further agree to follow any oral or written instructions or directions given by Seller relative to the use, application of any product offered and or sold by Seller.
To be held responsible for the knowledge of and adherence to any and all applicable federal, state or local laws that may or may not govern the use, application, or possession of any product purchased for consumer use from Seller.
Purchaser recognizes that there are certain inherent risks associated with the application and use of the products sold or designed by Seller, and Purchaser assumes full responsibility for personal injury to myself or anyone else, and further release and discharge Seller for injury, loss or damage arising out of Purchaser’s use of any product sold by Seller.
To follow the instructions explicitly for use and or assembly of the Flame Thrower according to the exact specifications and protocol. Purchaser understands and agrees that Seller assumes no liability whatsoever, for any deviation, whether intentional or unintentional or by any error in the modification or assemblage of the final product, and its outcome is the sole liability of Purchaser.
By clicking the button(s) indicating your agreement, you agree to the General Terms and Conditions of Sale within this Purchase Order. By clicking the button indicating your agreement, you further acknowledge and agree that by placing my order, filling out the shipping information, and consummating any transaction with Xmatter LLC or Throwflame.com by submitting payment, Purchaser has accepted these General Terms and Conditions and have thereby submitted his/her/its signature creating a legally binding document.