TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE: Buyer hereby confirms that WINEKEEPER (hereinafter "Seller") has received a verbal or written purchase order from Buyer, and that the items described on the face hereof and the provisions on both sides of this instrument shall govern this transaction. Buyer will be deemed to have assented to all of these provisions if any of the goods described on the face hereof are accepted. IF BUYER FINDS ANY TERM OR CONDITION UNACCEPTABLE, BUYER MUST NOTIFY SELLER AT ONCE IN WRITING PRIOR TO RECEIPT OF ANY ITEMS. If Buyer's purchase order contains terms additional to or different from the provisions hereof, this instrument shall serve as a notice of Seller's objection to such additional or different terms, and if Buyer's purchase order expressly limits acceptance to its terms, this instrument shall be deemed a rejection of Buyer's offer to purchase and a new offer of sale, which can only be accepted without modification, addition or alteration.
2. PRICE; TERMS; PAYMENT; INTEREST ON PAST DUE ACCOUNTS:
2.1. Unless stated otherwise on the face hereof Seller's prices are F.O.B. Seller's warehouse.
2.2. All prices quoted are subject to change by Seller at any time prior to Seller's acceptance of Buyer's purchase order or Seller's issuance of a confirmation to Buyer.
2.3. All prices are subject to addition of any federal, state and local sales or equivalent taxes applicable to this transaction. All such taxes shall be paid by Buyer.
2.4. No credit shall be extended, unless agreed to in writing. All indebtedness outstanding after the due date shall accrue interest of 1.5% per month from the due date until paid, unless such rate of interest exceeds the highest rate permitted by law, in which event the rate shall be the highest rate permitted by applicable law.
3. QUANTITY: Seller will attempt to ship the quantity ordered, but it is not always possible to do so. Seller reserves the right to ship in more than one shipment, in accordance with reasonable commercial practice.
4. DISCLAIMERS OF WARRANTIES AND RELEASE:
4.1. No agent, employee, or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty concerning any goods sold to Buyer, unless such affirmation, representation or warranty made by Seller's agent, employee or representative is specifically set forth in writing in this contract.
4.2. Variations are inherent in all products. Any questions regarding acceptability of the product must be resolved prior to usage or Seller shall have no liability therefore.
4.3 Buyer acknowledges that use constitutes acceptance.
4.4. BUYER DOES NOT WARRANT THAT THE ITEMS SOLD THEREOF ARE FIT FOR ANY PARTICULAR PURPOSE. SELLER'S ONLY WARRANTY IS THAT OF MERCHANTABILITY.
5. ACKNOWLEDGEMENT OF RIGHTS: Buyer acknowledges that certain items purchased under this Agreement may display trademarks or contain copyrighted material owned by Seller. Buyer acknowledges the existence of the rights of Seller to the trademarks and copyrights and agrees not to contest Seller's ownership of such rights. If Buyer is a reseller or authorized WineKeeper Dealer then Buyer further agrees not to use WineKeeper trademarks or copyrights in any advertising, marketing materials, brochures, web site, or otherwise without the express written consent of Seller. Buyer further agrees not to use the copyrighted materials for any purpose other than intended by this Agreement or to use any of Seller's trademarks unless and until Buyer has obtained a license from Seller granting such rights.
6. CONTINGENCIES: Seller shall not be liable to Buyer or any other person for any failure or delay by Seller in the performance of any obligation under this agreement due to events beyond Seller's its reasonable control.
7. DELIVERY OF GOODS: The goods shall be delivered to Buyer at Seller's warehouse and all risk of loss, damage, and all incidents of title and ownership shall then pass to Buyer upon delivery to the carrier or shipper.
8. Cancellation and returns: Buyer, for orders accepted by Seller and subsequently canceled by Buyer for reasons beyond the control of Seller, will be charged a cancellation and or restocking charge (for preapproved, non-custom orders), equal to twenty percent (20%) of the invoice amount.
9. CLAIMS; NOTICE OF DEFECTS: Seller will give reasonable consideration to settlement of Buyer's claims, but in addition to the other limitations to Seller's liability contained herein, Seller shall in no event be liable on any claims unless written notice of the claim is received by Seller within ten (10) working days from the date of delivery of the items to Buyer. Buyer's sole and exclusive remedy shall be a claim for refund of the purchase price, less any applicable restocking charges or fee(s), or at Seller's option, shipment of conforming items upon return of all disputed items to Seller. Buyer shall afford Seller prompt and reasonable opportunity to inspect all material as to which any claim is made. If Seller and Buyer are unable to reach settlement of any claim relating to goods or matters covered hereby. Buyer must institute legal action against Seller within one (1) year after Buyer has made its claim, and thereafter all such claims shall be barred notwithstanding any statutory period of limitation to the contrary.
10. DISPUTES: This agreement is deemed to be entered into in Santa Barbara, California, and shall be governed by the laws of the State of California. Seller and Buyer specifically agree that any legal action brought relating to goods purchased or otherwise relating to this contract will be brought and tried in Santa Barbara County, California.
11. MISCELLANEOUS CONDITIONS: This agreement contains the entire agreement between Buyer and Seller pertaining to this transaction, and none of the terms or conditions contained herein may be added to, deleted, modified, or altered except by a written instrument signed by Seller.