Bulk Purchase Agreement Terms and Conditions

TERMS AND CONDITIONS OF SALE UNDER BULK PURCHASE AGREEMENTS 

  1. Any terms not defined herein are defined in the applicable Purchase Agreement (the “Agreement”).
  1. PAYMENT TERMS. Unless otherwise agreed by Buyer and Seller in writing, payment terms are as set forth in the Agreement. 
  1. PAYMENT AND TAXES. Buyer agrees to pay all amounts payable to Seller when due, TIME BEING OF THE ESSENCE. Buyer shall pay all amounts including, without limitation, any such amounts payable as provided for in the Agreement and any applicable national, state, and local taxes applicable to purchase of the Product.
  1. LATE FEES. In the event that Buyer fails to pay any amounts under the Agreement when due, then Seller may charge interest on such late payments until paid at a rate equal to the lesser of (i) one and one half percent (1.5%) per month and (ii) the maximum rate of interest permitted under applicable law. 
  1. MODIFICATIONS AND SUBSTITUTIONS. Seller reserves the right, as it may deem necessary or appropriate, after consultation with Buyer, to modify or change the specifications of the Products prior to delivery, provided that such modifications or changes shall not adversely affect the performance or reliability of the Products.
  1. INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS.
    1. Buyer shall inspect the Products within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means only the following: (i) Product shipped is different than identified in the Agreement; or (ii) Product's label or packaging incorrectly identifies its contents.
    2. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Purchase Price for such Nonconforming Products. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller's address set forth in the Agreement, or such other address the Seller may provide. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer's shipment of Nonconforming Products, ship to Buyer, at Buyer's expense and risk of loss, the replaced Products to Buyer’s address set forth in the Agreement, or such other address the Buyer may provide.
    3. Buyer acknowledges and agrees that the remedies set forth in Paragraph 6(b) are Buyer's exclusive remedies for the delivery of Nonconforming Products. Except as provided under Paragraph 6(b) and the Limited Warranty, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under the Agreement to Seller. 
  1. CANCELLATION OR DEFAULT. Except for the rights granted in Paragraph 6 and the Limited Warranty, in the event Buyer seeks to cancel any order for the Product sold or to be sold hereunder, or defaults by refusal to accept shipment, Seller shall have the right, at Seller’s option and in addition to any other remedies provided by law, to retain all monies paid by Buyer to Seller for the Product as Seller's liquidated damages, and not as a penalty or forfeiture. Except for the defaults described in Paragraph 13, each of the following is an “Event of Default” hereunder: (a) Buyer fails to make any payment when due or fails to comply with any other covenant or agreement hereunder or (b) materially breaches any representation hereunder and such failure or breach continues for fifteen (15) days after written notice by Seller to Buyer. At any time on or after an Event of Default, Seller may exercise any right or remedy available by law or the Agreement, which rights and remedies, to the extent permitted by law, shall be cumulative.
  1. FAILURE TO ACCEPT DELIVERY. If for any reason Buyer fails to accept delivery of any of the Products on the date the Products have been delivered, or if Seller is unable to deliver the Products on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
  1. RISK OF LOSS. All risk of loss or damage to the Product shall pass and be assumed by the Buyer upon Seller’s delivery of the Product to the Buyer according to the terms of the Agreement.
  1. TITLE; SECURITY AGREEMENT. Title to the Product will pass to Buyer when delivered to the Buyer according to the terms of the Agreement. Until the Purchase Price is paid by Buyer in full, Seller shall retain a first priority lien and purchase money security interest in the Product purchased herein by Buyer, including any replacements, additions and improvements to the Product or proceeds resulting from any disposition thereof and any insurance proceeds resulting from any damage or destruction thereof. Buyer hereby authorizes Seller, in Seller’s reasonable discretion, to execute on Buyer’s behalf and file a UCC-1 to evidence its retention of a security interest in the Product until payment in full, whereupon Seller shall release the UCC-1. 
  1. FORCE MAJEURE. Seller shall not be liable for any failure to perform or delay in performance of its obligations hereunder caused by circumstances beyond its reasonable control including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of public enemy, war, rebellion, insurrection, riot, sabotage, epidemic, transportation restrictions, acts of God, acts of any government or any agency thereof, judicial action, inability to obtain or delays in obtaining machinery, parts, materials, or sufficient qualified labor, or any other causes beyond Seller’s reasonable control, whether similar or dissimilar to the foregoing. In the event of such a delay, delivery date of Product shall be appropriately adjusted to accommodate for such delay.
  1. REPRESENTATIONS AND WARRANTIES.
  2. Buyer has full power and authority to enter into and perform the obligations contemplated by the Agreement.
  3. Buyer's execution, delivery and performance of the Agreement has been duly authorized and constitutes Buyer's valid and binding obligations and is enforceable in accordance with its terms.
  4. Seller has full power and authority to enter into and perform the obligations contemplated by the Agreement.
  5. Seller’s execution, delivery and performance of the Agreement has been duly authorized and constitutes Seller’s valid and binding obligations and is enforceable in accordance with its terms.
  6. Seller makes no representations as to obtaining any permission from any authorities with regard to using the Product.
  1. INTELLECTUAL PROPERTY. Buyer, its agents, employees and representatives hereby acknowledge Seller’s ownership of all right, title and interest in all patents, pending patent applications, trademarks, trade names, service marks and copyrights associated with the Product (“IP”). Buyer, its agents, employees and representatives further acknowledge that it shall acquire no interest in the IP by virtue of the Agreement. Buyer, its agents, employees and representatives agree that it will not use in advertising, publicity or otherwise any IP or any contraction, abbreviation or simulation thereof that is owned by the Seller, or otherwise infringe on the Seller’s rights in the IP. Seller hereby grants to Buyer a limited, nontransferable license to use Seller's trademarks in connection with the Product. Such license may be terminated at any time by Seller in the event of Buyer’s default which is not cured within twenty (20) days after Seller delivers written notice thereof. Buyer further agrees not to remove or make or permit any alterations in any of the tags, labels or other identifying markings placed by Seller on any of the Product.
  1. Subject to the terms and conditions of the Agreement, Buyer (as “Indemnifying Party”) shall indemnify, hold harmless, and defend Seller and its parent, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (“Losses”), arising out of or relating to any claim of a third party:
  2. relating to a breach or non-fulfillment of any representation, warranty, or covenant under the Agreement by Indemnifying Party or Indemnifying Party’s personnel;
  3. alleging or relating to any negligent or more culpable act or omission of Indemnifying Party or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under the Agreement;
  4. alleging or relating to any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or negligent acts or omissions of Indemnifying Party or its personnel;
  5. relating to a purchase of a Product by any person or entity purchasing directly or indirectly through Indemnifying Party and not directly relating to a claim of warranty breach;
  6. relating to any failure by Indemnifying Party or its personnel to comply with any applicable Law; or
  7. alleging that the Indemnifying Party breached its agreement with a third party as a result of or in connection with entering into, performing under or terminating the Agreement.
  1. LIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THE AGREEMENT, LIABILITY FOR INDEMNIFICATION, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR ANY PARENT OR AFFILIATED COMPANY OF SUCH PARTY BE LIABLE TO THE OTHER PARTY, FOR SPECIAL, PUNITIVE, INDIRECT, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, DOWN TIME, LOST-PRODUCTION, LOSS OF USE OF PRODUCT OR ANY ASSOCIATED PARTS, AND/OR DEFECTS IN BUYER’S OUTPUT, MATERIALS, WORK PRODUCT OR WORKMANSHIP, ARISING DIRECTLY OR INDIRECTLY FROM THE USE OF THE PRODUCT OR OTHERWISE RELATING TO THE AGREEMENT, ANY SERVICE PROVIDED OR THE RELATIONSHIP OF THE PARTIES, WHETHER ARISING OUT OF WARRANTY, CONTRACT, EQUITY, STRICT LIABILITY OR TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, REGARDLESS OF ANY CLAIM THAT A REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT MAY EITHER PARTY ASSERT THAT THE REMEDIES PROVIDED HEREIN ARE INADEQUATE OR HAVE FAILED OF THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL THE TOTAL LIABILITY OF SELLER OR ANY PARENT OR AFFILIATED COMPANY OF SELLER TO BUYER EXCEED THE PRICE PAID FOR THE PARTICULAR PRODUCT OR SERVICE(S) AT ISSUE, PROVIDED THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO CLAIMS AGAINST SELLER FOR INDEMNIFICATION BY BUYER OR ITS INSURANCE CARRIER RESULTING FROM PAYMENTS MADE TO THIRD PARTIES WHO SUFFER LOSS TO PERSON OR PROPERTY RESULTING FROM ANY DEFECT IN THE PRODUCT. 
  1. LIMITATION OF WARRANTY. EXCEPT AS STATED ON SELLER’S WEBSITE UNDER “PUREPRESSURE WARRANTY COVERAGE,” AVAILABLE HERE HTTPS://GOPUREPRESSURE.COM/PAGES/PUREPRESSURE-ROSIN-PRESS-WARRANTY-COVERAGE (THE “LIMITED WARRANTY”). THE PRODUCTS ARE PROVIDED WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. BUYER’S SOLE AND EXCLUSIVE REMEDY IS SET FORTH IN THE LIMITED WARRANTY. BUYER HEREBY DISCLAIMS ANY RELIANCE OR INDUCEMENT BASED UPON ANY PRODUCTS BROCHURES, LITERATURE, ON-LINE CONTENT OR OTHER WRITTEN OR VERBAL STATEMENTS OR DESCRIPTIONS WITH RESPECT TO PRODUCTS, EXCEPT TO THE EXTENT SUCH STATEMENTS OR DESCRIPTIONS ARE EXPRESSLY SET FORTH IN THE LIMITED WARRANTY. 
  1. Neither the Agreement nor any of the rights or obligations created herein are assignable by Buyer without the prior written consent of the Seller. Any purported assignment in violation of this Paragraph shall be void. No assignment or delegation relieves the assigning or delegating party of any of its obligations under the Agreement. Seller may assign any of its rights or delegate any of its obligations without the consent of Buyer. The Agreement is binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
  1. All notices, requests, consents, claims, demands, waivers, and other communications under the Agreement (each, a “Notice”) must be in writing and addressed to the other party at its address set out in the Agreement (or to any other address that the receiving party may designate from time to time in accordance with this Paragraph). Unless otherwise agreed herein, all Notices must be delivered by email, personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Paragraph. 
  1. If any provision, term or condition of the Agreement is found invalid, illegal or unenforceable in any jurisdiction, the remaining provisions will be given effect as if the invalid or unenforceable provision were not a part of the Agreement.
  1. AMENDMENTS; WAIVER. The Agreement may not be amended except in a writing signed by the authorized representatives of both parties. No waiver of any provision of the Agreement shall be effective unless made in writing and signed by the party sought to be charged therewith. The failure of either party to enforce any provision of the Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. 
  1. The provisions contained in these Terms and Conditions that, in order to give proper effect to its intent, should survive termination or earlier expiration of the Agreement, shall survive the termination or earlier expiration of the Agreement.
  1. NO THIRD-PARTY BENEFICIARIES. Except as set forth in Paragraph 14 above, the parties do not confer any rights or remedies upon any person other than the parties to the Agreement and their respective successors and permitted assigns.
  1. CHOICE OF LAW AND VENUE. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the State of Colorado, without regard for its conflict of laws principles. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of these courts and agrees to bring any action, litigation, or proceeding only in The United States District Court for The District of Colorado sitting in Denver County or their local counterparts, and irrevocably waive any objection they now or hereafter may have respecting the venue of any such action or proceeding brought in such a court or respecting the fact that such court is an inconvenient forum.
  1. ATTORNEYS' FEES. If any action is brought by either party against the other in connection with or arising out of the Agreement, the prevailing party shall be entitled to recover from the other party its reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred in connection with the prosecution or defense of such action.
  1. WAIVER OF JURY TRIAL. SELLER AND BUYER EACH WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT, OR THE RELATIONSHIP OF SELLER AND BUYER. 
  1. In addition to any remedies that may be provided in the Agreement, Seller may terminate the Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under the Agreement; (ii) has not otherwise performed or complied with any of the terms of the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  1. ENTIRE AGREEMENT. The Agreement, including and together with the Terms and Conditions, and any other documents or webpages incorporated by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. 
Your cart