KWIPPED Terms And Conditions Of Sale

  1. AGREEMENT. Supplier ("Seller") and the Buyer ("Buyer") named on the electronic purchase order located at KWIPPED.com (the "Purchase Order") agree that the following terms and conditions apply to the purchase and sale of the Equipment listed on the Purchase Order (the "Agreement").
  2. ACCEPTANCE OF TERMS. The Purchase Order is expressly conditioned upon Buyer's acceptance to the terms. Buyer acknowledges that no supplemental, additional or altered terms from those set forth herein shall be integrated into the Agreement, unless and until Seller has issued written acceptance of such terms. Buyer's acceptance of any Equipment supplied by or on behalf of, Seller shall, without limitation constitute Buyer's acceptance of the Equipment and terms of this Agreement. If Buyer retains possession of the Equipment for a period of ten (10) days or longer after the receipt of shipment or makes use of the Equipment at any time after receipt, Buyer shall be deemed to have expressly assented to this Agreement without condition or qualification, and in so doing, Buyer shall have confirmed its express intention to waive any conditions or qualifications on Buyer's acceptance of Seller's offer. In the absence of shipping and packing instructions, Seller shall use its own discretion in choice of carrier and method of packing. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer and any insurance so requested shall be at Buyer's expenses and valuation.
  3. FEES. Following acceptance from Seller, Buyer shall pay to Seller the Fees set forth in the Purchase Order for the Equipment. Unless otherwise indicated in the Purchase Order, all sales are F.O.B. Seller's place of business. No discount will be allowed unless specifically agreed to by Seller. All payments hereunder shall be paid by providing credit card or ACH information of Buyer to KWIPPED, Inc. ("KWIPPED"). Buyer hereby authorizes KWIPPED to charge Buyer's credit card or bank account for all charges due under the terms of this Agreement. Buyer understands and agrees that KWIPPED is only providing billing and collection services to Seller, and is not a party to this Agreement nor responsible for any obligations of Seller or Buyer under this Agreement.
  4. LIMITATION OF LIABILITY. UNLESS OTHERWISE SPECIFIED IN WRITING OR INCLUDED ON THE KWIPPED "QUOTE" PRIOR TO THE PURCHASE, SELLER MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE EQUIPMENT OR THE MATERIAL OR WORKMANSHIP IN THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND SELLER HEREBY DISCLAIMS THE SAME; IT BEING UNDERSTOOD THAT THE EQUIPMENT IS SOLD TO BUYER "AS IS" AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY BUYER. SELLER IS NOT RESPONSIBLE FOR ANY REPAIRS, SERVICE, MAINTENANCE OR DEFECT IN THE EQUIPMENT OR ITS OPERATION. Seller's LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS EQUIPMENT SHALL BE LIMITED TO REPAIRING OR REPLACING (AT Seller's OPTION) EQUIPMENT FOUND BY SELLER TO BE NONCONFORMING, OR AT Seller's OPTION, TO REFUNDING THE PURCHASE PRICE OF THE NON-CONFORMING EQUIPMENT. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING LOST PROFITS OR OPPORTUNITY COSTS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. THE REMEDY UNDER THE WARRANTY PROVISION IS LIMITED TO REPAIR OR REPLACEMENT. BUYER SHALL INDEMNITY SELLER AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY SELLER ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY.
  5. RELEASE AND INDEMNITY OF KWIPPED. Each party agrees and acknowledges that it is using the services and website provided by KWIPPED to facilitate the purchase transaction of the Equipment between Buyer and Seller, and at that party's own risk, that KWIPPED is not an agent for either party, that the KWIPPED services and website are provided on an "AS IS" and "AS AVAILABLE" basis, and to the extent permitted by applicable law, KWIPPED excludes all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. The parties agree that this Section applies, without limitation, to any shipping services either party may engage through the KWIPPED White Glove Shipping solution as described on the website, that KWIPPED has no liability to any party using such shipping solution, and that a party's sole remedies with respect to the shipping solution is with the shipping company providing the shipping. With respect to any dispute each party has with one or more users of KWIPPED's services or website, that party releases KWIPPED (and its affiliates and subsidiaries, and their respective shareholders, officers, directors, employees, and agents) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this paragraph each party expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this paragraph to include only those claims which that party may know or suspect to exist in its favor at the time of agreeing to this paragraph. Each party further agrees to indemnify and defend KWIPPED and its affiliates and their respective shareholders, directors, officers, employees, attorneys, and agents (the "KWIPPED Indemnified Parties"), and hold each of them harmless from and against any and all losses, damages, claims, demands, expenses, fines, penalties, suits and liabilities, including without limitation, reasonable attorneys' fees ("Losses") that the KWIPPED Indemnified Parties shall incur or suffer arising out of, relating to, or resulting from (a) this Agreement, (b) the ownership of the Equipment, as applicable, (c) a breach of this Agreement by such party, (d) the gross negligence, willful misconduct, fraud, or misrepresentation of such party or of persons acting for or on behalf of such party pursuant to this Agreement, including without limitation, officers, directors, employees, agents and contractors of such party, (e) such party's improper use of KWIPPED's services or the website, or (f) such party's breach of any law or the rights of a third party.
  6. TITLE AND RISK OF LOSS. Title to any Equipment sold and risk of loss of such Equipment passes to Buyer upon delivery by Seller to carrier, and any claims for losses or damage shall be made by Buyer directly to carrier. Uniform Commercial Code § 2-401(2) shall apply to the transfer of ownership between Buyer and Seller, unless the Buyer and Seller otherwise agree.
  7. TAXES. Buyer shall pay any and all sales, use, property, and other taxes, fees, and other assessments and governmental charges, together with any penalties or interest thereon, levied on or associated with its purchase of the Equipment. Buyer must upload to Seller via the KWIPPED website any exemption certificate to receive tax exempt treatment under this Agreement.
  8. DELAYS. Unless expressly specified to the contrary, Seller shall ship to Buyer the purchased Equipment as soon as possible under the circumstances. However, all shipping dates are approximate, and are based upon current availability of materials, present production schedules, and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment or other nonperformance in the event that all or substantially all of its obligations under this Agreement are materially interfered by reason of any cause or occurrence beyond the control of Seller, including without limitation, (a) machine malfunction (except to the extent caused by intentional or grossly negligent acts of Seller, its employees or agents), (b) strikes, fires, disasters, riots, acts of God, (c) acts of Buyer, (d) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (e) governmental action, (f) subcontractor or supplier delay including, but not limited to failure by subcontractor or supplier to make timely delivery, or (g) any other cause of condition beyond Seller's reasonable control. In the event of any such delay or nonperformance, Buyer may, at its option, and without liability, cancel all or any portion of this Agreement and/or extend any date upon which any performance hereunder is due.
  9. TERMINATION, CANCELLATION, AND CHANGES. Purchase Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance of Buyer's order by Seller, except with Seller's written consent and subject to reasonable charges for expenses incurred and work executed by Seller or its suppliers. Buyer shall be obligated to accept any portion of the Equipment shipped or delivered by Seller pending Seller's written approval of cancellation.
  10. RETURNED PRODUCTS. Delivered Equipment returned to Seller requires prior written approval from Seller before such Equipment will be accepted. At the sole discretion of Seller, handling, inspection, restocking and invoicing charges will be accessed, if applicable, plus any outgoing packing and freight expenditures paid by Seller. All returns allowed must be shipped to Seller prepaid and must be in the condition as required by the Seller. Equipment processed to Buyer's specifications are not returnable.
  11. Assignment. This Agreement shall not be assigned by Buyer without the prior written consent of Seller. Upon consensual assignment, this Agreement and the rights and obligations hereunder shall be binding upon the successors and assigns of Buyer.
  12. Governing Law. This Agreement shall be governed by and construed according to the laws of the state where Seller's headquarters are located, applicable to contracts entered into and wholly performed in such state, and irrespective of any conflicts of law rules related thereto.
  13. Partial Invalidity. Nothing contained in this Agreement shall be construed so as to require the commission of any act contrary to law, and whenever there is any conflict between any provision of the Agreement and any statue, law, ordinance, order, or regulation, the latter shall prevail, but in such event, any provision of this Agreement so affected shall be curtailed and limited to the extent necessary to bring it within the legal requirements. In the event that any portion of these terms and conditions shall be held to be invalid or unenforceable in a court of law or equity; (i) the parties agree to negotiate in good faith an acceptable alternative provision which reflects as closely as possible the intent of the enforceable provision; and (ii) the validity and legality of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and shall remain in full force and affect.
  14. No Waiver. The failure of either party to insist upon the other party's performance of any obligations hereunder shall not be construed as a waiver of or the breach of any obligation of either party or of any subsequent breach of which obligation. The failure of either party to exercise any right or remedy which it may have hereunder or under the law shall not be construed as a waiver of any other right or remedy which the party may have hereunder or under the law.
  15. Cumulative Remedies. Any right and remedy belonging to Seller hereunder or under the law shall be deemed cumulative and not exclusive of one another and the exercise by Seller of any such right or remedy shall not preclude Seller from exercising or enforcing any other right or remedy it may have.
  16. Arbitration. All disputes arising from this Agreement, or from any other agreement that exists between the parties to this Agreement, shall be referred for binding arbitration under the rules of the American Arbitration Association, with such arbitration to be held in the city where the Seller's headquarters are located. In the event that arbitration is found not to apply to the parties or to a particular claim or dispute under this Agreement, Buyer hereby irrevocably consents to the jurisdiction of the state and federal courts of the State where Seller's headquarters are located, to accept service of all summons, complaints, and other process of such court(s), and that such court(s) is a convenient forum for resolution of disputes arising out of or related to this Agreement.
  17. Notices. All notices to be given hereunder must be in writing and shall be given by the parties hereto only in one of the following ways: (1) by personal delivery, (2) by certified mail, postage prepaid, to the contact person and address specified in the Purchase Order.
  18. Miscellaneous. This Agreement, and if applicable, the Supplier Promotion Agreement, Rental Contract, or Lease Contract, contain the entire understanding between the parties and supersedes all prior understandings of the parties hereto relating to the subject matter hereof. This Agreement may not be modified, nor may any provision be waived, except by an instrument in writing, signed by both parties. Paragraph headings used herein are for convenience only and shall not be used in any way to interpret the provisions of this Agreement. Seller and Buyer hereby accept each other's electronic signature as binding insofar as such signatures relate to this Agreement and any other dealings between the parties to this Agreement.
Version/Last Updated: Mar 27, 2019