CHECKOUT TERMS AND CONDITIONS
Brooklyn Textiles, (“Seller”) offers to sell
certain goods (“Goods”) specifically described in the invoice
to which these terms and conditions are attached (the
“Purchase Order”, and together with these terms and
conditions, this “Agreement”) to the customer set forth on the
Purchase Order (“Buyer”), exclusively upon the terms and
subject to the conditions set forth in this Agreement.
The Purchase Order is expressly limited by, and conditioned
upon acceptance by Buyer of, this Agreement. Seller hereby
rejects any contrasting or additional terms relating to this
Agreement proposed by Buyer or included in Buyer’s
Purchase Order or other document(s), none of which shall
be effective unless authorized in writing by an authorized
representative of Seller. Submission of the Purchase Order is
an express agreement by Buyer of this Agreement and
the terms and conditions contained herein.
- Purchase Order. Sales by Seller to Buyer of
Goods shall be requested by means of the foregoing
Purchase Order and shall have been purchased through the
website - https://brooklyn-equipment.com/. Notwithstanding the foregoing, the
Purchase Order shall not be binding upon Seller until and unless
Seller dispatches (by email or facsimile) an
acknowledgement confirming acceptance of the Purchase
Order.
- Price; Delivery. Buyer shall purchase the Goods from
Seller at the price(s) set forth in the Purchase Order. All prices
are inclusive 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. Buyer shall be responsible for
all such changes, costs and taxes; provided, that, Buyer
shall not be responsible for any taxes imposed on, or
with respect to, Seller’s income, revenues, gross receipts,
personnel, real property, personal property or other
assets. The Goods will be delivered within a reasonable
time after the acknowledgement confirming
acceptance of the Purchase Order. Seller shall not be
liable for any delays, loss, or damage in transit. Unless
otherwise agreed to in writing by the parties, Seller
shall deliver the Goods to Buyer using Seller’s
standard methods for packaging and shipping
such Goods. [Buyer shall be responsible for all
loading costs and provide equipment and labor reasonably suited
for receipt of the Goods, if applicable.] Seller may, in its sole
discretion, without liability or penalty, make partial shipments
of Goods to Buyer. Each shipment will constitute a separate
sale, and Buyer shall pay for the units shipped whether such
shipment is a whole or partial fulfillment of Buyer’s Purchase
Order.
- Title and Risk of Loss. All Goods shall be
delivered Ex Works (Incoterms 2020) at the place of business of
Seller or its agent, as applicable, where shipment
originates. Title and risk of loss shall pass to
Buyer upon Seller or its agent’s delivery of the
Goods to the carrier. Seller shall inform the carrier of
the address Buyer provides on the Purchase Order
- Inspection and Rejection of Nonconforming
Goods. Buyer shall inspect the Goods within three (3) days
of receipt (“Inspection Period”). Buyer will be deemed to have
Nonconforming Goods during the Inspection Period and
furnished such written evidence or other documentation as
reasonably required by Seller. “Nonconforming Goods”
means only the following: (i) the product shipped is different
than identified in Buyer’s Purchase Order; or (ii) the product’s
label or packaging incorrectly identifies its contents. If Buyer
timely notifies Seller of any Nonconforming Goods and Seller
agrees with Buyer’s assessment that the Goods are
Nonconforming Goods, Seller shall, in its sole 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 Seller’s facility. If Seller exercises
its option to replace Nonconforming Goods, Seller shall, after
receiving Buyer’s shipment of Nonconforming Goods, ship to
Buyer, at Buyer’s expense and risk of loss, the replaced Goods.
Buyer acknowledges that the preceding remedies are Buyer’s
sole and exclusive remedies for the delivery of Nonconforming
Goods. Except as provided in the foregoing, 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 Seller.
- Non-Exclusivity. Nothing herein will be deemed to
create an exclusive relationship between Buyer and Seller.
Buyer acknowledges and agrees that Seller may sell and supply
goods of a similar nature to the Goods being supplied by Seller
in terms of the Purchase Order.
- Restrictions on Transfer. Buyer shall not export or resell
or otherwise transfer the Goods or any information related
thereto to any third party without the express written consent of
Seller. Buyer shall not export or re-sell or otherwise transfer
such Goods.
- No Implied License. Except for rights expressly
granted under this Agreement, no right, title, or interest of any
nature whatsoever is granted whether by implication, estoppel,
reliance, or otherwise, by Seller to Buyer. All rights with
respect to any know-how, patent or other intellectual property
are reserved to Seller.
- Disclaimer of Warranties. SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND
EXCEPT AS SPECIFICALLY SET FORTH IN THESE
TERMS AND CONDITIONS; FURTHERMORE, SELLER
DISCLAIMS, AND BUYER AGREES NOT TO ASSERT
ANY CLAIMS AGAINST SELLER, IN RELATION TO ANY
AND ALL OTHER WARRANTIES, CONDITIONS OR
OTHER TERMS OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THOSE OF
MERCHANTABILITY, SUITABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, SELLER EXPRESSLY DISCLAIMS ANY
AND ALL IMPLIED CONDITIONS, REPRESENTATIONS
OR WARRANTIES WITH RESPECT TO (A) THE
SUITABILITY OF THE USE OF THE GOODS IN BUYER’S
OPERATIONS AND (B) THE QUALITY OR
PERFORMANCE OF ANY PRODUCTS MANUFACTURED
BY BUYER.
PURCHASE ORDER TERMS AND CONDITIONS
- Limitation of Liability. IN NO EVENT SHALL
SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY
FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR
ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES
WHETHER ARISING OUT OF BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE AND WHETHER OR NOT SELLER HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND NOTWITHSTANDING THE FAILURE
OF ANY AGREED OR OTHER REMEDY OF ITS
ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’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 AMOUNTS ACTUALLY PAID TO
SELLER FOR THE GOODS SOLD HEREUNDER GIVING
RISE TO SUCH CLAIM.
- Indemnification. Buyer shall protect, defend,
indemnify and hold harmless Seller, its affiliates and its and
their directors, officers, shareholders, employees, and agents,
and their respective successors and assigns, from any and all
liabilities, losses, costs, damages or expenses, including
reasonable attorneys’ fees from any third party claims,
proceedings, actions or causes of actions which arise out of or
relate to (i) the Goods supplied hereunder (including any
product containing or otherwise incorporating such Good), (ii)
any breach by Buyer of any of its representations, warranties,
covenants, agreements, or obligations under this Agreement, or
(iii) the negligence, recklessness or willful misconduct of
Buyer.
- Compliance with Law. Buyer shall comply with all
applicable laws, regulations, and ordinances. Buyer shall
maintain in effect all the licenses, permissions, authorizations,
consents, and permits that it needs to carry out its obligations
under this Agreement. Buyer agrees to use the Goods solely as
authorized by the FDA and in accordance with all laws, rules
and regulations.
- Force Majeure. Seller shall not be liable for any
failure or delay in performing its obligations under any
Purchase Order to the extent that such failure or delay is due to:
(i) any war, riot, insurrection or other civil commotion; (ii) any
strike, lockout or other labor dispute; (iii) any epidemic,
pandemic, fire, flood or other act of God; (iv) any utility
shortage or curtailment; (v) any governmental order, decree ore
regulation; or (vi) any other similar causes beyond Seller’s
reasonable control.
- Miscellaneous.. 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. Buyer shall not assign any of its rights or
delegate any of its obligations under this Agreement without the
prior written consent of Seller. Any purported assignment or
delegation in violation of this section is null and void. No
assignment or delegation relieves Buyer of any of its
obligations under this Agreement. The Buyer must permit the
Seller or its designated representatives reasonable access to
Buyer’s premises for the purpose of conducting audits of the
Buyer’s records to verify Buyer’s compliance with this
Agreement. These terms and conditions may only be amended
or modified in writing, which specifically states that it amends
these terms and conditions and is signed by an authorized
representative of each party.
- Governing Law; Forum. This Agreement is governed
by and shall be construed in accordance with the laws of the
State of New York. Any action arising under or relating to this
Agreement shall be brought in a court of the State of New York
(or, if appropriate, a federal court located within New York),
and Buyer hereby consents to jurisdiction in such forum for any
such action.
- Severability. If any terms 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 and conditions
which by their nature should apply beyond their terms will
