EBAY SALES TERMS AND CONDITIONS OF SALE
Applicability:
These Terms and Conditions of Sale (these “Terms“) are consistent with any applicable provisions of the EBAY User Agreement and EBAY API License Agreement and govern the sale of the goods (“Goods“) by Dedicated Networks, Inc. or any affiliated company (respectively, a “Seller“) to any customer (“Buyer“). Any quotation, invoice, packing slip, order acknowledgement or the like issued by Seller (the “Sales Confirmation” and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede any and all other agreements.
Delivery and Shipping:
The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase confirmation, subject to availability of finished Goods. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods FOB to Buyer’s dock (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods and, unless Seller has made other arrangements with Buyer, Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer.
Goods are shipped Monday through Friday (excluding US Postal Holidays), and if agreed upon by the parties next business day shipping is available for an extra fee on most paid orders. Seller may require additional delivery time on large orders, and chassis bundles. On international shipments: Customs and import duties may be applied to international orders when the shipment reaches its destination. Such charges are the sole responsibility of Buyer and vary from country to country. Seller will not change the claimed paid value on international orders to have them pass through customs.
If for any reason Buyer fails to accept delivery of any of the Goods: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related resulting costs and expenses (including, without limitation, storage and insurance) incurred or suffered by Seller.
The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
Non-Delivery:
The Seller shall not be liable for any claimed non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within thirty (30) days after the actual (or latest estimated) delivery date when the Goods would have been delivered in the ordinary course of business. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Title and Risk of Loss:
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
Amendment and Modification:
These Terms may only be amended or modified in a writing that specifically states that it amends these Terms and is signed by an authorized representative of each party.
Inspection and Return of Nonconforming Goods:
Buyer shall inspect the Goods within thirty (30) days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only that product shipped is different than identified in Buyer’s purchase confirmation. If Buyer timely notifies Seller of any Nonconforming Goods and such Nonconforming Goods are received by Seller, in the same condition they were shipped in, at its identified place of business, Seller shall then in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. No replacement or refund will be provided to Buyer without Seller’s first receiving the returned Nonconforming Goods. Buyer may request a return of Nonconforming Goods sold “AS IS” within 30 days of delivery. Buyer acknowledges that these Terms control and are not inconsistent with EBAY’s Money Back Guarantee Policy.
Buyer acknowledges and agrees that the remedies set forth in this Sectionare Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
Price and Payment:
Buyer shall purchase the Goods from Seller in the manner provided for in Seller’s EBAY Store. Full payment is due at the time the Goods are ordered. All Prices are exclusive 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 charges, 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 or real or personal property or other assets.
No Warranty:
UNLESS OTHERWISE AGREED TO BY SELLER IN WRITING, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) EXPRESS WARRANTY, (B) IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, INCLUDING IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE SALE OF GOODS IS ON A “AS IS/WHEREAS” BASIS.
Limitation of Liability:
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, 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 OF THE AMOUNTS PAID TO SELLER FOR THE AFFECTED GOODS SOLD BY SELLER TO BUYER. The limitation of liability set forth in this paragraph shall not apply to liability resulting from Seller’s gross negligence or willful misconduct.
Compliance with Law:
Buyer shall comply with all applicable laws, regulations and ordinances. Seller may terminate its sale of Goods to Buyer if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) IS DISCLAIMED.
Waiver:
No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any rights, 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.
Force Majeure:
The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any Terms herein when and to the extent such failure or delay is caused by an event or circumstance that is beyond the reasonable control of Seller including but not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, war, terrorist acts, civil unrest, national emergency, labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or telecommunication breakdown or power outage.
Assignment:
Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No permitted assignment or delegation shall relieve Buyer of any of its obligations hereunder.
Governing Law:
All matters arising out of or relating to these Terms shall be governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule.
Submission to Jurisdiction:
Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Minnesota, in each case located in Anoka County, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
Severability:
If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.