TherFit Enterprises, LLC
|All sales of products and services by TherFit Enterprises, LLC (“Seller”) are made on the following terms and conditions. In these Terms of Sale, any products sold by Seller to the buyer (“Buyer”) are referred to below as “goods,” and any services sold by Seller to Buyer are called “services.”|
|1.||Agreement. If Buyer has not otherwise agreed to these Terms of Sale, then Buyer’s acceptance of delivery of, or payment for, the goods or services will constitute Buyer’s agreement to these Terms. Seller objects to and will not agree to any terms that are additional to or different from these terms. Terms that are printed on or contained in a purchase order or other form prepared by Buyer which are additional to, in conflict with or inconsistent with those herein will be considered inapplicable and will have no force or effect.|
|2.||Order Acceptance Policy. Buyer’s receipt of an electronic or other form of order confirmation does not signify Seller’s acceptance of Buyer’s order, nor does it constitute confirmation of Seller’s offer to sell. Seller reserves the right at any time after receipt of Buyer’s order to accept or decline Buyer’s order for any reason. Seller reserves the right at any time after receipt of Buyer’s order, without prior notice to Buyer, to supply less than the quantity ordered of any item. Seller may require additional verifications or information before accepting any order.|
|3.||Payment Terms. Seller will have the right to increase its prices at any time without notice. Payment for the products or services will be made in full before physical delivery of goods or services.|
|4.||Delivery and Risk of Loss. Seller or the manufacturer of the goods (“Manufacturer”) will deliver the goods to Buyer on the terms set forth in Seller’s quotation or acknowledgment, except that risk of loss of the goods will pass to Buyer upon identification of the goods to the contract between Buyer and Seller. Shipping, delivery and performance dates are estimates only, and time is not of the essence. Seller or Manufacturer may ship all the goods at one time or in portions from time to time. Seller will have the right, but no obligation, to determine the method of shipment and routing of the goods, unless otherwise agreed to by Seller in writing.|
|5.||Taxes. Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Buyer will be liable for all such taxes, whether or not Seller invoices Buyer for them. Buyer agrees to provide Seller in good faith with a tax exemption certificate as to the goods Buyer purchases from Seller, and Seller will be entitled to rely on the tax exemption certificate Buyer provides.|
|6.||Unavoidable Delay. If Seller is not able to finish or deliver the goods to Buyer, or to perform the services, on time because of anything Seller cannot control (such as casualty, labor trouble, accidents or unavail¬ability of goods, supplies or transportation), then the estimated delivery or performance time will be extended accordingly, and Seller will not be liable to Buyer for any damages caused by the delay.|
|7.||Defects; Limitations. SELLER DOES NOT MAKE ANY WARRANTY AS TO THE GOODS OR SERVICES, EXPRESS OR IMPLIED, AND, IN PARTICULAR, DOES NOT MAKE ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. The only warranty applicable to the goods is the warranty (if any) provided to Buyer from Manufacturer. Buyer is solely responsible for determining the proper application and use of the goods. Seller will not have any tort lia¬bility with respect to any of the goods or services and will not be liable to Buyer or any other third party for consequential, incidental, punitive or other special damages of any kind whatsoever, including but not limited to lost profits or other financial damage, that arise from any product defect, delay, non-delivery or other breach. Buyer will not have any right of rejection or of revocation of acceptance of the goods. No person other than an officer of Seller may modify or waive these warranty limitations, and all modifications or waivers must be in writing.|
(a) Buyer does not have any right to cancel its agree¬ment to buy the goods or services from Seller. If, however, Seller agrees in writing to permit cancellation, Buyer agrees that such cancellation will be subject to restocking fees, if any.
(b) If Buyer fails to pay or perform any indebtedness or obligation that Buyer at any time owes to Seller, then Seller may consider Buyer’s failure to be an anticipatory repudiation of any or all outstanding contracts that provide for Seller to sell goods or services to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts.
|13.||Indemnity and Reimbursement. Buyer will indemnify and hold harmless Seller with respect to all damages, losses, claims and expenses, including consequential and incidental damages and actual attorney fees, that Seller incurs as a result of Buyer’s breach of any of Buyer’s obligations under these Terms of Sale. If Buyer brings a claim against Seller arising out of or relating to this Agreement or the goods or services, and Seller ultimately prevails or Buyer eventually elects not to further pursue the claim, then Buyer will reimburse Seller for all expenses incurred by Seller in connection with such claim, including but not limited to actual attorney fees.|
|14.||Seller’s Rights. Seller has all rights and remedies that applicable law gives to sellers. Seller’s rights and remedies are cumulative, and Seller may exercise them from time to time. Seller’s waiver of any right on one occasion will not be a waiver of any future exercise of that right.|
|15.||Time For Bringing Action. Any action that Buyer brings against Seller for breach of this Agreement or for any other claim that aris¬es out of or relates to the goods or their design, manufacture, sale or delivery or the services must be brought within one year after the cause of action accrues.|
|16.||Applicable Law. This agreement between Seller and Buyer will be considered to have been made in the State of Michigan, and it will be governed by and interpreted according to Michigan law. Either party may bring any action that arises out of or relates to this agreement in any federal or state court in Grand Rapids, Michigan, that has jurisdiction of the subject matter, and Buyer irrevocably consents that any such court will have per¬sonal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.|
|17.||Complete Agreement; Amendment. Seller’s quotation and acknowledgment and these standard Terms of Sale contain the entire agree¬ment between Buyer and Seller as to the subject matter hereof. Any change in this agreement must be in a writing signed by an authorized officer of Seller.|