Returns & Terms of Service
Levrack Terms of Service
1
LEVRACK, LLC
GENERAL TERMS AND CONDITIONS
PURCHASE ORDER
__________________________________ (“Customer”) has ordered specially designed storage systems (the “Goods”) from LEVRACK at the price, quantity and delivery terms set out in a Purchase Order. For purposes hereof, the term “Purchase Order” shall be deemed to include these General Terms and Conditions (the “Terms”). LEVRACK agrees to provide the Goods on these Terms:
1. ACCEPTANCE AND MODIFICATION OF TERMS. The Purchase Order becomes a binding contract when accepted by acknowledgment of LEVRACK. The Purchase Order, which includes these Terms, constitutes the entire agreement between the parties and supersedes any and all proposals and prior agreements or understandings regarding the subject matter thereof. No change or modification of the Purchase Order shall be binding unless it is in writing and signed by an authorized representative of the party sought to be bound. Any acknowledgment, terms of sale, or other form of writing containing terms and conditions of sale submitted by Customer which vary from the terms and conditions contained here shall not have the effect of modifying the Purchase Order or these Terms unless specifically agreed to in writing by LEVRACK. LEVRACK will consider Customer’s request for changes only if such request is in writing and is directed to specific paragraphs or terms hereof.
2. DELIVERY. It is anticipated that the Goods will be delivered to Customer within ______ business days of the date specified in the Purchase Order (the “Delivery Date”). LEVRACK may deliver all the Goods at the same time or it may deliver the Goods in multiple shipments in LEVRACK’s sole discretion. If any circumstances arise which may delay the delivery of the Goods, LEVRACK will notify Customer of the circumstances and advise Customer of the revised Delivery Date. Terms and charges for shipping will be listed in the Purchase Order. Unless expressly provided otherwise in the Purchase Order, each delivery shall be FOB Shipping Point.
3. INVOICES AND PAYMENT. All invoices will be submitted to Customer by email and/or U.S. mail as determined by LEVRACK and may be submitted at any time after acceptance by LEVRACK of a Purchase Order. Amounts payable pursuant to an invoice will be paid by Customer by cash or check no later than the delivery date (if the Goods are delivered by LEVRACK) or the shipping date (if the Goods are shipped by LEVRACK). If any amounts are not paid at such time, LEVRACK will delay delivery until full payment is received. If a deposit on the purchase of Goods is required and collected under the terms of the Purchase Order, it is nonrefundable. If Customer completes the purchase of Goods under the Purchase Order, the deposit will be applied to the purchase price. If Customer fails to complete the purchase of Goods under the Purchase Order, the deposit shall be retained by LEVRACK and LEVRACK may pursue such other remedies as are available to it under applicable law.
4. TITLE AND RISK OF LOSS. Title to Goods covered by the Purchase Order shall pass to Customer upon delivery to Customer (if the Goods are delivered by LEVRACK) or upon shipping (if the Goods are shipped by LEVRACK). Risk of loss of or damage to Goods shall remain with LEVRACK until, and shall pass to Customer upon, (a) delivery of the Goods to a carrier if transportation is FOB shipping point or (b) delivery of the Goods to Customer at the 2
destination specified in the Purchase Order, whichever is later, if shipping is provided by LEVRACK.
5. USE AND INSTALLATION: Customer agrees that Customer will not use the Goods for any purpose other than as intended by LEVRACK as a storage system. Customer has received LEVRACK’s assembly manual and agrees to install and use the Goods in accordance with the manual. In the event Customer uses the Goods for an unintended purpose or fails to install the Goods in accordance with the assembly manual, the warranties of LEVRACK contained herein shall be void.
6. WARRANTIES. LEVRACK warrants that all Goods furnished hereunder (a) shall be free from defects in material and workmanship, and (b) shall conform to and shall perform in accordance with applicable specifications and descriptions provided to Customer by LEVRACK. These warranties shall survive acceptance and payment by Customer. LEVRACK will correct any nonconformity or defect in the Goods existing at the date of delivery which is apparent on the date of delivery or which becomes apparent within a period of 24 months after the delivery of the Goods, provided, however, that Customer must provide written notice of such nonconformity to LEVRACK as set forth below. Upon receiving notice of such nonconformity, LEVRACK will promptly investigate the claimed nonconformity. If LEVRACK confirms the existence of the nonconformity, then LEVRACK shall, at LEVRACK’s option, (a) repair or replace, at LEVRACK’s expense, any Goods that fail to meet the applicable warranty or the terms of the Purchase Order, or (b) refund the price of any such Goods.
LEVRACK EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THE LIMITED WARRANTY SET FORTH ABOVE, WHICH IS THE SOLE AND EXCLUSIVE WARRANTY REGARDING THE GOODS AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR STATUTORY. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER WILL GIVE NOTICE TO LEVRACK OF ANY WARRANTED DEFECTS WITHIN TEN (10) DAYS OF THE DATE THAT THE DEFECTS ARE DISCOVERED BUT IN NO EVENT LATER THAN EXPIRATION OF THE WARRANTY PERIOD. THE WARRANTY IS NON-TRANSFERRABLE AND APPLIES ONLY TO DEFECTS THAT ADVERSELY AFFECT THE PERFORMANCE OF THE GOODS. DISCOLORATION OR OTHER AESTHEIC ISSUES WHICH DO NOT AFFECT THE PERFORMANCE OF THE GOODS ARE NOT COVERED BY THIS WARRANTY. THE WARRANTY PERIOD SHALL NOT BE EXTENDED BEYOND THE ORIGINAL WARRANTY EXPIRATION DATE EVEN IF THERE IS A REPLACEMENT ITEM OR PRODUCT.
7. REMEDY; LIMITATION OF LIABILITY. Customer is advised and agrees that the remedies available to Customer for a warranty claim are limited. CUSTOMER’S SOLE REMEDY FOR A VALID WARRANTY CLAIM SHALL BE, AT LEVRACK’S OPTION, TO EITHER REPAIR OR REPLACE THE GOODS (AND SUCH REMEDY DOES NOT INCLUDE THE COST OF LABOR TO 3
REMOVE OR TO REINSTALL REPLACEMENT PARTS OR REPLACEMENT GOODS) OR TO REFUND THE PURCHASE PRICE FOR THE GOODS. LEVRACK SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL COSTS OR DAMAGES, LOST PROFITS, LOSS OF CUSTOMERS, LOSS OF GOODWILL, WORK STOPPAGE, CLAIMS BY ANY THIRD PARTY, SAVINGS OR REVENUES OF ANY KIND THAT MAY ARISE AS A RESULT OF THE USE OR INABILITY TO USE THE GOODS OR LEVRACK’S PERFORMANCE OR FAILURE TO PERFORM UNDER THE TERMS OF THIS WARRANTY, EVEN IF CUSTOMER HAS ADVISED LEVRACK OF THE POSSIBILITY OF SUCH DAMAGES. LEVRACK’S LIABILITY FOR DAMAGES SHALL NOT EXCEED THE PURCHASE PRICE OF THE NONCONFORMING GOODS.
8. TECHNICAL DATA. All specification, drawing, designs, know-how, trade secrets, technical data, inventions or other information which are furnished to Customer in connection with the delivery or installation of the Goods are and shall remain the sole and exclusive property of LEVRACK and Customer agrees to keep all such information confidential and not to use it or disclose it to other parties without the specific written consent of LEVRACK given in its sole discretion.
9. PRICE. All prices are U.S. dollars.
10. GOVERNING INSTRUMENTS. In the event of any inconsistency among the reference documents, attachments, drawings, specifications or other provisions of the Purchase Order, the following order of precedence shall apply: (a) these Terms, (b) special terms and conditions set forth in the Purchase Order, (c) the Specifications, (d) drawings, and (e) all other attachments or documents incorporated herein by reference. The terms of a Purchase Order will not supersede these Terms unless there is a specific reference to the Paragraph of the Terms that is being amended or superseded.
11. APPLICABLE LAW. The Purchase Order shall be governed by, and construed in accordance with, the laws of the state of Nebraska.
12. SEVERABILITY. If any portion of these Terms is found to be invalid or unenforceable, the parties agree that the remaining provisions shall remain in full force and effect; provided, however, that if the invalid or unenforceable portion is an essential part hereof, the parties will immediately begin negotiations to establish a mutually agreeable replacement provision.
13. SECTION HEADINGS. The section headings are inserted for convenience only and are not intended to affect the meaning or interpretation of these Terms.
14. INDEPENDENT CONTRACTORS. The parties are independent contractors and are not partners, principal and agent, master and servant, employer or employee of each other. Neither party has, and neither party shall represent to a third party that it has, any power or authority to bind the other in any way.
15. NOTICES. Any notice described herein will be deemed to be sufficiently given on the date of delivery to the recipient if (i) personally delivered to the U.S. business address office of the other party or (ii) delivered electronically to the email address below with confirmation of 4
submission, or (iii) when sent by first class U.S. certified or registered mail or via a national overnight courier service with proof of delivery. Any party may furnish a change of address to the other party in writing in accordance herewith, and such notices of change of address shall be effective upon receipt. All notices, requests, claims, demands and other communications required to be made hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) to the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section),
16. COUNTERPARTS. These Terms may be executed and delivered in one or more counterparts, each of which shall be deemed an original, and all of which shall be deemed to constitute one and the same agreement. An executed counterpart of these Terms delivered by fax, personal data file or other means of electronic communications shall be deemed to be an original and shall be as effective for all purposes as delivery of a manually executed counterpart.
17. SUCCESSORS AND ASSIGNS/ NO THIRD PARTY BENEFICIARIES. These Terms shall be binding upon and inure to the benefit of the respective successors and permitted assigns of each party; provided that no party may transfer or assign any of such party’s rights, interests or obligations hereunder, except in accordance with these Terms. There are no intended third party beneficiaries of the obligations of the parties.
AGREED AND ACCEPTED:
LEVRACK: Customer: ____________________________________
SIGNED: ____________________________________ SIGNED: ____________________________________
TITLE: ______________________________________ TITLE: ______________________________________
ADDRESS: _________________________________ ADDRESS: __________________________________
_____________________________________ _____________________________________
EMAIL: ___________________________________ EMAIL: _____________________________________
4841-7897-8869, v. 2