Buyer agrees to the terms and conditions outlined in this Online Purchase ("Contract") with respect to the goods, services and information provided by or through the Site. This Contract constitutes the entire and only agreement between the D – K Bargins 4 U and Buyer, and supersedes any and all prior or contemporaneous agreements, representations, warranties, and understandings with respect to the purchases, services and information provided by or through the Site, and the subject matter of this Contract. Buyer agrees to review this Contract prior to purchasing anything and purchase of a good or service shall be deemed acceptance of this Contract.
2. WARRANTY / REMEDY.
Seller warrants that the materials, goods manufactured by it will be free from defects in material and workmanship according to the paperwork enclosed in the shipment as all products differ. THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE NOT EXPRESSLY HEREIN, ARE HEREBY EXCLUDED. NO AFFIRMATION OR SELLER, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS WARRANT CLAUSE SHALL CONSTITUTE A WARRANTY. GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER, BUT ARE SOLD ONLY WITH THE WARRANTIES, IF ANY, OF THE MANUFACTURERS THEREOF. Seller’s warranty does not apply to any goods which have been subjected to misuse, mishandling, misapplication, neglect, accident, improper installation or modification (including but not limited to use of unauthorized parts or attachments).
a. The parties hereto expressly agree to Buyer’s sole and exclusive remedy against the Seller shall be for the repair or replacement of the defective goods. Buyer herby agrees that this excusive remedy shall not be deemed to have failed of its essential purpose so long as the Seller is willing and able to repair or replace defective.
b. Any warranty claim by Buyer with reference to the goods sold hereunder shall be deemed waived by the Buyer unless submitted in writing to Seller with the earlier of (i) 7 days following the date Buyer received product, any claimed breach of the foregoing warranty, or (ii) 7 days following the date of shipment. Any cause of action for breach of the foregoing warranty shall be brought within one year from the date of alleged breach was discovered or should have been discovered, which ever occurs first.
c. Seller’s remedies relating hereto to shall be cumulative and in addition to any other remedies provided herein or by law or in equity.
3. LIMITATION OF LIABILITY.
SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS SHALL BE LIMITED TO REPAIRING OR REPLACING (AT SELLER’S OPTION) GOODS FOUND BY SELLER TO BE NON-CONFORMING, OR AT SELLER’S OPTION. At Seller’s request, Buyer will send at, Buyer’s sole expense, any allegedly defective goods to Seller’s plant.
4. DISCLAIMER OF CONSEQUENTIAL AND INCIDENTAL DAMAGES.
IN NO EVENT SHOULD SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION BREACH OF ANY
OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. THE REMEDY UNDER THE WARRANTY PROVISION IS LIMITED TO REPAIR OR REPLACEMENT. Consequential damages for purposes hereof shall include, without limitation, loss of use, income or profit or losses sustained as the result of injury (including death) to any person or loss of or damage to
property (including without limitation, property handled or processed by the use of the goods). Buyer shall indemnity Seller against all liability, cost or expense which may be sustained by Seller on account of any such loss, damage or injury.
5. ACCEPTANCE OF GOODS, DELIVERY AND TRANSPORTATION.
Upon buyer’s receipt of shipment, buyer shall immediately inspect the goods. Unless Buyer provides Seller with written notice of any claim or shortages of or defects in the Good forty eight (48) hours after receipt of shipment, such goods shall be deemed finally inspected, checked and accepted by Buyer. In the absence of shipping and packing instructions, Seller shall use its own discretion in choice of carrier and method of packing. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer and any insurance so requested shall be at Buyer’s expenses and valuation.
6. TITLE AND RISK OF LOSS.
Title to any Goods sold and risk of loss of such goods passes to Buyer upon delivery by Seller to carrier, and any claims for losses or damage shall be made by Buyer directly to carrier.
7. SHIPPING PRICE.
All prices are F.O.B. Seller’s plant unless otherwise specifically set forth on the face side hereof. Prices stated are subject to change without notice in the event of (i) alterations in specifications, quantities, designs, or delivery schedules: (ii) increases in the cost of fuel, power, material supplied, or labor, and/or (iii) foreign or domestic legislation enacted by any level of government, including tax legislation which increases the cost of producing, warehousing or selling the goods purchased hereunder. Shipping charges to Alaska, Canada, Hawaii and International orders will be based on your locations and additional fees will apply. No discount will be allowed unless specifically set forth on the face side
8. Subject to the Trade Practices Act or other applicable legislation or law no returns will be accepted on special orders, sale items.
The customer agrees regardless of any negligence on the part of D – K Bargins 4 U in providing the goods to release, hold harmless and indemnify D – K Bargins 4 U from any liabilities claims or costs which may accrue against or be suffered by the customer in connection with the supply of the goods by D – K Bargins 4 U unless caused by willful misconduct on the part of D – K Bargins 4 U. D – K Bargins 4 U will not be liable to the customer in connection with the supply of the goods or any error in information supplied to the customer at any time (whether negligent or a breach of contract or not).
10. SIGNATORIES LIABLE
Any person, who signs any form, applies for credit, or places an order on behalf of a customer that is a company or trust are personally responsible for payment of amounts required to be paid by the customer.
11. If the customer is a trustee of a trust, the customer agrees to be liable for any amounts due in its own right as well as the trustee of the trust.