Purchase Terms and Conditions
1. Agreement to Sell. USply LLC and its affiliates, subsidiaries and divisions, (collectively referred to with the terms “we”, “us”, “our” or “USply”) agrees to sell the products identified in relevant order (“Goods”) to the Buyer (referred to with the terms “Buyer”, “you” and “your”), provided that the sale is on the terms and conditions presented herein. All rights not specifically granted herein are herein expressly reserved by us. WE WILL ONLY FILL YOUR ORDER ON THE TERMS AND CONDITIONS SET FORTH HEREIN (THIS “AGREEMENT”). FOR THE AVOIDANCE OF DOUBT, WE DO NOT AGREE TO, AND SPECIFICALLY REJECT, ANY DIFFERENT OR ADDITIONAL TERMS IN YOUR PURCHASE ORDER OR OTHER DOCUMENTS UNLESS WE HAVE SPECIFICALLY ACCEPTED SUCH DIFFERENT OR ADDITIONAL TERMS IN SIGNED WRITING. THIS AGREEMENT IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF OUR STANDARD TERMS AS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT EXPRESSLY AND PROMPTLY NOTIFY US IN WRITING THAT YOU DO NOT AGREE TO THESE TERMS, YOU SHALL BE DEEMED TO BE BOUND BY SAID TERMS.
2. Price Increases & Taxes. We may increase our prices, at any time, to reflect any increased costs to us in obtaining and providing the Goods, etc. It is not USply’s standard policy to apply such price increases to orders that have already been confirmed on a Sales Order form, however, we reserve the right to do so at any time on previously confirmed orders at our sole discretion. In such a circumstance, you shall be notified of the price increase and permitted to accept the increased price or modify/cancel your order. Otherwise, the increased price will become effective and govern this Agreement once posted. Unless otherwise specifically stated on the Sales Order form, all prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. As a result of the foregoing, we may increase or otherwise adjust the prices in this Agreement without prior notice to cover any taxes (other than taxes on net income) and governmental fees that we may be required to pay or collect with respect to the Goods sold under this Agreement.
3. Payments. Unless otherwise agreed upon by us, you agree that payment terms are net ten (10) days from date of shipment. Invoices not paid within agreed upon terms may incur interest at a rate of 1% per month on unpaid balances. We may revoke your credit if you fail to pay timely for Goods shipped, or if we determine, in our sole discretion, that your financial condition has undergone an adverse change. We may require you to pay before we obtain or ship Goods if we elect not to extend credit.
4. Collection Costs. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to USply a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. If you do not pay for the Goods in full and on time, we may engage lawyers and/or other agents to help us collect amounts owed to us. We may add amounts paid or incurred in collecting sums owed by you (including legal and collection agency fees and expenses) to the amount of the invoice and interest provided in Section 3.
5. Shipments. Unless otherwise agreed upon, we will arrange transportation of the Goods to you to your designated port or destination from either our facility or from any other facility at our sole discretion. USply may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer.
6. Excused Non-Performance. The Goods will be delivered within a reasonable time after the date of this Agreement, subject to availability of finished Goods. USply shall not be liable for any delays, loss or damage in transit. We are not responsible for failures to make delivery, delays, or any other deviations in our performance directly or indirectly due to causes beyond our reasonable control.
7. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods immediately upon receipt/arrival (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it immediately notifies USply in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by USply. “Nonconforming Goods” means only the following: (i) product shipped is significantly different in function than those identified on the Sales Order form; or (ii) product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies USply of any Nonconforming Goods, USply shall, in its sole and absolute discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to a location as directed by USply, unless USply agrees to facilitate the return of Nonconforming Goods on behalf of Buyer. If USply exercises its option to replace Nonconforming Goods, USply shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to USply.
8. Warranty. Unless otherwise stated on our website, there are no warranties which extend beyond the description of the face hereof and the Goods are sold “AS IS”. Separate warranties provided by the product manufacturer may be applied and are passed through to you to the extent that they are applicable and available.
THE WARRANTY UNDERTAKING IN THIS AGREEMENT DOES NOT APPLY TO ANY GOODS THAT HAVE BEEN SUBJECTED TO ACCIDENT, DISASTER, LOSS OR DAMAGE DURING SHIPMENT, NEGLECT, MISUSE, IMPROPER INSTALLATION, CORROSIVE ATMOSPHERE, NOR TO DYSFUNCTION OR MALFUNCTION OF, OR CAUSED BY, ANY OTHER EQUIPMENT OR DEVICE (OTHER THAN EQUIPMENT OR DEVICES YOU HAVE BOUGHT FROM US) TO OR IN WHICH SUCH GOODS HAVE BEEN ATTACHED OR INSTALLED. EXCEPT FOR THE WARRANTY SPECIFICALLY SET FORTH IN THIS SECTION, USply MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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. USply MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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. THE REMEDIES SET FORTH IN SECTION 10 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND USply’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10.
9. Limitation of Liability. The remedies described in Section 7 and 8, and in Section 10 are exclusive. Under no circumstances do we have any other or further liability or obligation, whether for breach of warranty or for any other claim. IN NO EVENT SHALL USply BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT USply WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL USply’S 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 THE TOTAL OF THE AMOUNTS PAID TO USply FOR THE GOODS SOLD HEREUNDER or $10,000, WHICHEVER IS LESS. We assume no responsibility for any goods or products we have not supplied to you, or for expendable supply items, or for our failure to provide goods due to any cause beyond our reasonable control. Time Limits For Claims. You must commence any action for a breach of any of our obligations within one (1) year after the breach occurs, regardless of your lack of knowledge of the breach. Any action not commenced within the one (1) year period shall be forever barred, notwithstanding any longer statutory period of limitation.
10. Cancellation. Except as provided in Section 2, you may not cancel any order or terminate your obligations to accept and pay for Goods to be delivered without our prior written consent.
11. Inventions and Other Intellectual Property. All ideas, discoveries, inventions, concepts, improvements, processes, methods, know-how, and other forms of intellectual property, and all plans, drawings, tools, and other items or materials that we have made, developed, created, compiled or fabricated in producing any Goods especially for you, are and shall remain our exclusive property at all times.
12. Confidentiality. In the performance of this Agreement each party may disclose to the other party certain confidential information, orally or in writing, including, but not limited to, business plans, cost or price data, customer or author information, technical information and other information related to the parties’ business. Notwithstanding the foregoing, confidential information shall not include information that: 1) the receiving party can demonstrate by written record was already rightfully known to that party prior to its receipt from the disclosing party; 2) is now, or becomes in the future, public knowledge through no fault, act or omission of the receiving party; 3) is independently developed by the receiving party without any use of, or reliance on, the disclosing party’s confidential information; or 4) is required to be revealed by law. Each party shall disclose or use the other party’s confidential information for the sole purpose of performing this agreement, and shall safeguard such information against unauthorized disclosure to others with at least the same degree of care as it exercises with its own information of a similar nature, but in no event less than reasonable.
13. Indemnity. You agree to indemnify, defend, and hold harmless USply and its respective successors, officers, directors, and employees from and against any and all of the following Indemnification Events: actions, causes of action, claims, demands, costs, liabilities, expenses, judgments, proceedings, and damages (including reasonable attorneys’ fees) arising from (i) your performance or lack of performance of its duties under this Agreement, or (ii) any third party action resulting or allegedly resulting from the use of Goods by you. Any party who becomes aware of an Indemnification Event shall promptly notify the indemnifying party of such event.
14. Binding Arbitration and Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. This Agreement will be governed by the laws of the State of Florida without regard to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Claims relating to this Agreement will be resolved through final and binding arbitration, except as set forth below.
Initial Dispute Resolution: The parties agree that most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Accordingly, before initiating a lawsuit or arbitration, Buyer agrees to contact USply to attempt to resolve the dispute in good faith. Binding Arbitration & Class Action Waiver: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to the Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your purchase of the Goods shall be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Thus, THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this Section is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in state or federal court located in Florida. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Agreement, including, but not limited to any claim that all or any part of the Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the Parties and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be held in Broward County, Florida. If any court or arbitrator determines that this arbitration provision is void or unenforceable for any reason or that the parties are not bound to arbitrate their claims, then the disputes, claims or controversies deemed not to be subject to arbitration must be litigated in state or federal court located in Florida. Exception: Litigation of Intellectual Property Claims: Notwithstanding the foregoing, disputes, claims, or controversies concerning (1) either party’s patents, copyrights, moral rights, trademarks, and trade secrets or (2) claims of piracy or unauthorized use of the Goods shall not be subject to arbitration.
15. Construction. This Agreement and any remedy you elect in lieu of the warranty of Section 8, is intended as the final expression of the agreement between you and us and constitutes the complete and exclusive statement of the terms of the agreement between you and us. No statement or agreements, oral or written, made before or at the signing of this Agreement, may vary or modify the written terms of this understanding. Neither you nor we may claim any amendment, modification or release from any provision of this Agreement unless it is in writing, signed by both of us, and specifically states that it amends this Agreement.
16. Miscellaneous. Force Majeure. Except for payment obligations, neither USply nor Buyer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, pandemic, civil disturbance, acts of terrorism or war, disease, labor conditions, governmental actions and interruption or failure of the Internet or any utility service; Assignment. Neither this Agreement nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent; provided, however, that either party may assign this Agreement without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Agreement will be null and void; Entire Agreement. This Agreement, together with any Buyer purchase order or order form associated herewith, constitutes the entire agreement of the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. If a court of competent jurisdiction deems any provision of this Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, which shall remain in full force and effect; No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision; Communications from USply. You agree to receive electronically all communications, agreements, documents, notices, and disclosures that we provide in connection with the Goods (“Communications”). We may provide Communications in a variety of ways, including by e-mail, text, in-app notifications, or by posting them on the USply website. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing.
Version 1.0 – 05-13-2021