Terms and Conditions. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) and any related services (“Services”) by Dime Labs, LLC (“Seller”) to the buyer of such Goods and/or Services (“Buyer”), and are deemed incorporated into any sales order confirmation to which they are attached or with which they are provided (including, without limitation, through incorporation by reference through Seller’s website). These Terms and any accompanying invoice or sales order confirmation (collectively, the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representation and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. ANY ADDITION, CHANGE, OR DELETION BY BUYER TO THESE TERMS IN ANY PURCHASE ORDER OR OTHERWISE SHALL BE DEEMED A MATERIAL ALTERATION AND IS EXPRESSLY REJECTED BY SELLER. These Terms apply to any replacement Goods provided by Seller hereunder.
Payment Terms. Terms of sale are Net 30 from the earlier of the date of delivery of the Goods and/or Services on date of Seller’s invoice, unless expressly stipulated otherwise in writing. Buyer shall make all payments hereunder by check or wire transfer of immediately available funds and in US dollars. A service charge of 1-1/2% per month (APR 18%) may be charged on all past due balances. In the event of any breach or default by Buyer on the terms and conditions of sale set forth herein, Seller may employ any company, corporation, agency or attorney to collect any and all amounts owing from Buyer to Seller, including but not limited to purchase price, service charges, delivery charges and taxes; and Buyer shall pay to Seller all costs, expenses and fees, including reasonable attorneys’ fees, incurred by Seller in the enforcement of the said terms and conditions of sale. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
Disclaimer of Warranty. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, AS TO THE CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER MATTER CONCERNING THE GOODS OR THE SERVICES AND BUYER ACCEPTS THE MATERIALS AS IS. SELLER DOES NOT ADOPT OR AFFIRM ANYOF THE WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, MADE BY ANY OF THE MANUFACTURERS OF ANY OF THE GOODS. Seller will extend to Buyer, on a “pass through”non-recourse basis, any warranty provided by the manufacturer of the purchased Goods to the extent permissible. EXCEPT AS PROVIDED ABOVE, GOODS AND SERVICES WILL BE PROVIDED TO BUYER ON AN “AS IS” BASIS AND SELLER DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULARPURPOSE, OR NON-INFRINGEMENT) WITH RESPECT TO THE GOODS AND SERVICES.
Limitation of Liability. SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, LOST PROFITS OR LOST REVENUES, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGESEVEN IF SUCH DAMAGES WERE FORESEEABLE OR IT HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES. SELLER’S AGGREGATE LIABILITY WITH RESPECT TOTHE SALE OF ANY GOODS OR PROVISION OF ANY SERVICE SHALL IN NO EVENT EXCEED THE PRICE PAID BY THE BUYER FOR SUCH GOOD AND/OR SERVICE.
Force Majeure. Seller shall not be liable to Buyer for any loss or damage suffered by Buyer, directly or indirectly as a result of Seller’s failure to perform, or delay in performing any obligation under this order where such a failure or delay is caused by labor troubles (including, without limitation, strikes, slowdowns and lockouts), civil disturbance, war, acts of terrorism, weather, Government regulations, inability to obtain or revocation of export or import licenses, interruptions of or delay in transportation, materials shortages, power failures, accident, or other cause of like or different character beyond Seller’s control.
Price. Buyer shall purchase the Goods and Services from Seller at the price specified in the applicable invoice.
Seller takes exception to and hereby objects to all hold harmless and indemnity provisions, either express or implied, set forth in Buyer’s purchase order that seek to impose liability on Seller.
Representations by Buyer. By executing this Agreement, the Buyer represents to the Seller that as of the date hereof the Buyer has not ceased to pay its debts in the ordinary course of business, that it can pay its debts as they become due and that it is solvent within the meaning of applicable federal bankruptcy laws.
Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement 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.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Governing Law. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
Severability. 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.
Survival.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Limitation of Liability, Compliance with Laws, Governing Law, Submission to Jurisdiction, and Survival.