(a) Welcome to the website of Snowide North America, LLC ("Company", "we" or "us"). The following General Terms and Conditions of Sale, together with any documents they expressly incorporate by reference (collectively, these "Terms"), are the only terms which govern the sale of the products available on our Website (the "Products") by us to you.
(b) These Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Fulfillment of your order does not constitute acceptance of any of your terms and conditions and does not serve to modify or amend these Terms.
(a) The Products will be delivered within a reasonable time after the receipt of your purchase order, subject to availability of finished Products. We shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, we shall deliver the Products to the address provided by you using our standard methods for packaging and shipping such Products.
(c) We may, in our sole discretion, without liability or penalty, make partial shipments of Products to you. Each shipment will constitute a separate sale, and you shall pay for the Products shipped whether such shipment is in whole or partial fulfillment of your purchase order.
(d) If for any reason you fail to accept delivery of any of the Products, or if we are unable to deliver the Products at the address provided by you because you have not provided appropriate instructions: (i) risk of loss to the Products shall pass to you; (ii) the Products shall be deemed to have been delivered; and (iii) we, at our option, may store the Products until you pick them up, whereupon you shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(a) The quantity of any installment of Products as recorded by us on dispatch from our place of business is conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence proving the contrary.
(b) We shall not be liable for any non-delivery of Products (even if caused by our negligence) unless you give written notice to us of the non-delivery within five (5) days of the date when the Products would in the ordinary course of events have been received.
(c) Any liability of us for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
4. Inspection and Rejection of Nonconforming Products.
(a) You will be deemed to have accepted the Products unless you notifies us in writing of any Non-conforming Products within five (5) days of reception and furnishes such written evidence or other documentation as required by us. "Non-conforming Products" means only the following: (i) product shipped is different than identified in your purchase order; or (ii) product's label or packaging incorrectly identifies its contents.
(b) If you timely notifies us of any Non-conforming Products, we shall, in our sole discretion, (i) replace such Non-conforming Products with conforming Products, or (ii) credit or refund the Price for such Non-conforming Products, together with any reasonable shipping and handling expenses incurred by you in connection therewith. You shall ship, at your expense and risk of loss, the Non-conforming Products to the address communicated by us. If we exercise our option to replace Non-conforming Products, we shall, after receiving your shipment of Non-conforming Products, ship to you, at your expense and risk of loss, the replaced Products to the address communicated by you.
(c) You acknowledge and agree that the remedies set forth in Section 4(b) are your exclusive remedies for the delivery of Non-conforming Products. Except as provided under Section 4(b), all sales of Products to you are made on a one-way basis and you have no right to return Products purchased to us.
You shall purchase the Products from us at the prices (the "Prices") set forth on the website.
6. Payment Terms.
You shall pay all invoiced amounts due to us by the time of the purchase. You shall make all payments hereunder by any payment method available on the website.
7. Limited Warranty.
(a) We warrants to you that for a period of two years from the date of shipment of the Products ("Warranty Period"), that such Products will conform to the specifications set forth in the description on the website in effect as of the date of shipment and will be free from material defects in material and workmanship.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 7(A), WE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (b) WARRANTY OF TITLE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) We shall not be liable for a breach of the warranty set forth in Section 7(a) unless: (i) you give written notice of the defect, reasonably described, to us within five (5) days of the time when you discover or ought to have discovered the defect; (ii) we are given a reasonable opportunity after receiving the notice to examine such Products and you (if requested to do so by us) return such Products to our place of business at your cost for the examination to take place there; and (iii) we reasonably verify your claim that the Products are defective.
(d) We shall not be liable for a breach of the warranty set forth in Section 7(a) if: (i) you make any further use of such Products after giving such notice; (ii) the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) you alter or repair such Products without the prior written consent of us.
(e) Subject to Section 7(c) and Section 7(d) above, with respect to any such Products during the Warranty Period, we shall, in our sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if we so request, your shall, at your expense, return such Products to us.
(f) THE REMEDIES SET FORTH IN SECTION 7(E) SHALL BE THE YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 7(A).
8. Limitation of Liability.
(a) IN NO EVENT SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY YOU OR COULD HAVE BEEN REASONABLY FORESEEN BY YOU, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TEN TIMES THE TOTAL OF THE AMOUNTS PAID TO US FOR THE PRODUCTS SOLD HEREUNDER or $5,000, WHICHEVER IS LESS.
(c) The limitation of liability set forth in Section 8(b) above shall not apply to (i) liability resulting from our gross negligence or willful misconduct and (ii) death or bodily injury resulting from our acts or omissions.
No waiver by us of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by us. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
10. Force Majeure.
We shall not be liable or responsible to you, nor be deemed to have defaulted or breached this Terms, for any failure or delay in fulfilling or performing any term of this Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of us including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
11. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
12. Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
13. Submission to Jurisdiction.
Any controversy of claim arising out of or relating to this Agreement or the breach thereof shall be settled by the American Arbitration Association in accordance with its Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The language of the arbitration shall be English and the place of the arbitration shall be New York.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.