Moxiyo, LLC -- Standard Terms and Conditions of Sale
Definitions; General; In these Terms “Company” means Moxiyo, LLC; “Customer” means the person or entity who places a written or verbal Order with Company for the sale of Goods; “Goods” mean the goods and/or services Ordered by Customer or delivered by Company to Customer; “Order” means an order for Goods placed by Customer with Company and accepted by Company; and “Terms” means these standard terms and conditions and any special terms set forth on an invoice. A faxed or scanned and electronically transmitted facsimile of a signature-bearing page will be conclusive evidence of execution and delivery. Company shall not be liable to Customer for any breach or delay due to events beyond Company’s reasonable control, including, but not limited to, acts of God; civil commotion; labor shortages or disputes; the unavailability of materials; or failures or delays in energy or transportation.
Orders; Acceptance; By either (1) signing an invoice or an agreement with Company, (2) placing an Order, (3) accepting delivery of Goods and/or (4) paying Company for Goods, Customer shall be bound by the Terms. Any terms or conditions of sale proposed by Customer, whether in Customer’s purchase order or otherwise, that are inconsistent with the Terms shall not be binding upon Company, whether or not Company accepts a purchase order or ships Goods. After Company accepts an Order, Customer may not cancel or modify the Order in whole or in part without Company’s prior written consent.
Prices. As the price for the Goods, Customer shall pay Company the product price quoted by Company plus federal, state and local sales, use, excise and other taxes and freight. Pricing for Goods includes Company’s standard packaging, labels and raw material and production costs.
Payment; Credit. Each invoice is payable on the terms specified on the invoice (or if no terms are specified, then net 15 days from the date of the invoice), whether or not Customer has inspected the Goods. Customer shall not deduct claimed damages from an invoice for any reason, without Company’s prior written consent. Customer shall pay Company interest at the rate of 9% per annum on any past due payments.
Shipping; Delivery. Company shall ship Goods to Customer F.O.B. place of destination, with packaging and carriers as designated by Company and at the price indicated in “Prices” above. Company’s title to Goods passes to Customer upon delivering the Goods to Customer at the destination. Any shipping or delivery dates indicated by Customer or Company are estimates only, and Company shall have no liability to Customer for failure to complete or deliver an Order by the date indicated or for any of Customer’s consequential or incidental damages arising from a delay.
Returns. Except for defective Goods (see “Limitations of Warranties and Remedies against Company, Defects” below) or Company’s shipment errors, Customer may not return Goods to Company without Company’s advance, written consent, which may be may conditioned on terms and conditions that Company reasonably requires, including payment of shipment charges. Company shall give Customer a credit for returned goods whose return is authorized only if Company receives the Goods, inspects them and deems the Goods to be re-saleable, in Company’s sole discretion.
Remedies against Customer; Enforcement; Indemnity. If Customer defaults under these Terms or under any other agreement with Company, then: (1) Company may exercise any available remedies; and (2) so long as the default remains outstanding, Company may refuse to deliver Goods to Customer without being liable for breach (or in its sole discretion Company may condition any delivery upon cash payment). No waiver will be construed as a continuing waiver or consent to a later breach. These Terms will be interpreted according to substantive Utah
law. State or federal courts located in Salt Lake County, Utah will have exclusive jurisdiction and venue of any dispute or enforcement proceeding concerning these Terms. However, Company may enforce a judgment or obtain injunctive relief in any jurisdiction. The non-breaching party in any enforcement proceeding will be entitled to an award of all expenses, including reasonable attorney fees, incurred in obtaining redress. Customer shall defend (with legal counsel reasonably acceptable to Company) and indemnify Company, its personnel and its professionals against any losses, claims, damages, suits, judgments, liabilities and expenses (including attorneys’ fees incurred in enforcing this indemnity or in defending against claims) that are asserted by third parties against Company and that arise out of either: (a) the use of the Goods by any third party with Customer’s products or services; or (b) Customer’s re-sale of the Goods, with or without Customer’s products or services, to any third party.
Limitations of Warranties and Remedies against Company; Defects. Company warrants that the Goods: (1) will conform to Company’s production information or specifications for those Goods that are in effect on the date of shipment (Company may change these at any time without advance notice); (2) will conform to their description in the Order; (3) will be free of security interests and liens created by Company; and (4) do not, to Company’s knowledge, infringe any patent or intellectual property rights of third parties. THESE WARRANTIES ARE EXCLUSIVE. COMPANY EXCLUDES ALL OTHER WAR-RANTIES RELATED TO THE GOODS, THEIR USE OR FAILURE, INCLUDING, BUT NOT LIMITED TO, EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF A PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT. COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUEN-TIAL DAMAGES THAT ARE CAUSED BY, THAT RELATE TO OR THAT ARISE OUT OF ANY GOODS, THEIR USE OR FAILURE, EVEN IF COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Promptly (but in no event more than seven working days) after receipt of Goods, Customer must inspect the Goods and advise Company of any defects or shipment errors. Company shall not be liable to Customer for any technical assistance or information related to the Goods given by Company or any suggestions by Company regarding the use, selection, application or suitability of Goods by Customer. Use of Goods might affect the color of Customer’s products with which the Goods are used. Customer is solely responsible for: (i) testing the Goods with its own products in advance to determine any adverse effects; (ii) the use of Goods in Customer’s own applications; (iii) any modifications or adaptations of the Goods after receipt; and (iv) failure to follow any handling or storing instructions in Company’s product information or specifications. IF ANY GOODS ARE DEFECTIVE OR ANY GUARANTIES GIVEN BY COMPANY ARE BREACHED, THEN CUSTOMER’S EXCLUSIVE REMEDY SHALL BE EITHER: (A) COMPANY’S REPLACEMENT OF THE GOODS FOR NO CHARGE; OR (B) A REFUND FOR THE PRICE PAID, AS ELECTED BY COMPANY. In no event shall Company’s liability for defective goods exceed the price of the goods. No employee, agent or representative of Company has authority to modify the provisions of this section or to make any representation or warranty concerning Goods. Customer must commence any action under this paragraph within six months after the cause of action accrues.
September 2014 4843-2381-4429, v. 3