APPLICABILITY. These terms and conditions of sale (“Terms”) are the only terms that govern the sale of products (“Products”) by Otter Products, LLC (“Liviri”) to the buyer named on the reverse side of these Terms (“Buyer”). Notwithstanding anything in these Terms to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered by these Terms, the terms and conditions of said contract will prevail to the extent they are inconsistent with these Terms. The accompanying confirmation of sale on the reverse side of these Terms (the “Sales Confirmation” and these Terms collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Any deviations from these Terms will apply only if and only to the extent that Liviri has expressly accepted them in writing. Verbal commitments will be binding upon Liviri only if and only to the extent that Liviri confirms them in writing. FAILURE OF BUYER TO IMMEDIATELY OBJECT IN WRITING TO THIS AGREEMENT WILL BE DEEMED ACCEPTANCE OF THIS AGREEMENT AND WILL CONSITIUTE A WAIVER OF ANY PRIOR OR SUBSEQUENT TERMS OR CONDITIONS REQUESTED BY BUYER.
PRODUCTS NOT FOR RESALE. Buyer represents and warrants that it is purchasing the Products for its own internal use only, and not for resale or export.
CANCELLATION; MODIFICATION. Cancellation or modifications of all or part of any order are subject to Liviri’s prior written consent in each instance. If cancellation or modification is allowed, Buyer agrees to pay to Liviri all expenses incurred, and damage sustained by Liviri on account of the cancellation or modification.
PRICE. Buyer will purchase the Products from Liviri at the price indicated on the Sales Confirmation. Typographic or other clerical errors in stated prices are subject to correction. Prices for Products covered by this Agreement may be adjusted by Liviri, upon notice to Buyer at any time prior to shipment, to reflect any increase in Liviri’s cost of raw materials, manufacturing, or tariffs incurred by Liviri after issuance of the applicable Sales Confirmation. All stated prices are exclusive of any taxes, fees, duties, tariffs, surcharges, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively, “Taxes”). Any Taxes related to the Products purchased pursuant to this Agreement are exclusively the responsibility of Buyer (excluding taxes based on Liviri’s net income), unless Buyer presents an exemption certificate acceptable to Liviri and the applicable taxing authorities.
PAYMENT TERMS. Unless otherwise specified on the Sales Confirmation, Buyer will pay all invoiced amounts due to Liviri on receipt of Liviri’s invoice in U.S. dollars by electronic payment of immediately available funds and without any right of set-off. Unpaid amounts will accrue interest at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer will reimburse Liviri for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Liviri does not waive by the exercise of any rights under these Terms), Liviri will be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due under this Agreement. Buyer may not, and acknowledges that it will have no right, under this Agreement or otherwise to withhold, offset, recoup, or debit any amounts owed (or to become due and owing) to Liviri against any other amount owed (or to become due and owing) to it by Liviri for any reason.
TITLE; RISK OF LOSS. Risk of loss or damage passes to Buyer upon Liviri’s delivery of the Products to the common carrier at its shipping facility. Title to the Products passes to Buyer upon Buyer’s payment in full for the Products. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Liviri a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions, replacements, or modifications, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Colorado Uniform Commercial Code.
DELIVERY. Liviri will deliver the Products to the address indicated on the reverse side of these Terms (the “Delivery Location”) using Liviri’s standard methods for packaging and shipping such Products. Unless expressly indicated otherwise on the Sales Confirmation, Buyer will pay all shipping and freight costs under this Agreement. Shipping and delivery dates are estimates only and cannot be guaranteed. Liviri will not be liable for any losses, or for general, incidental, special, or consequential damages arising out of delays, loss, or damage in transit. Liviri may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order. If for any reason Buyer fails to accept delivery of any of the Products or if Liviri is unable to deliver the Products at the Delivery Location because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (a) the Products will be deemed to have been delivered; and (b) Liviri, at its option, may store the Products until Buyer picks them up, and Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance). The quantity of any installment of Products, as recorded by Liviri on dispatch from Liviri’s place of business, is conclusive evidence of the quantity of Products received by Buyer upon delivery, unless Buyer provides conclusive evidence to the contrary. Liviri will not be liable for any non-delivery of the Products to the Delivery Location, unless Buyer gives written notice to Liviri of the non-delivery within five (5) business days following the date that Buyer would, in the ordinary course of business, have received the Products. Liviri’s liability for any non-delivery of Products will be limited to replacing the Products within a reasonable time or adjusting the invoice for the Products to reflect the actual quantity delivered.
INSPECTION. Buyer must inspect all shipments upon arrival and will be deemed to have accepted the Products unless it provides written notice to Liviri within five (5) business days from delivery indicating any Nonconforming Products received and furnishes such written evidence or other documentation as reasonably required by Liviri. “Nonconforming Products” means only: (a) Products that are different from those identified in the Sales Confirmation; or (b) Products in excess of the quantities identified in the Sales Confirmation. If Buyer timely and properly notifies Liviri of any Nonconforming Products, then Liviri will, in its sole discretion, either: (i) replace the Nonconforming Products with conforming Products; or (ii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At Liviri’s request, Buyer will dispose of the Nonconforming Products or return the Nonconforming Products to Liviri at Liviri’s expense. Upon receipt of the Nonconforming Products, Liviri will inspect the alleged Nonconforming Products and, if approved by Liviri, refund the amounts owed or ship the replacement Products to the Delivery Location at Liviri’s expense, with Liviri retaining the risk of loss until delivery. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of Nonconforming Products, and except as set forth in this section, Buyer has no right to return the Products to Liviri without Liviri’s written authorization.
CUSTOMIZED PRODUCTS. A customization fee applies for all Products customized for Buyer by or on behalf of Liviri. By confirming a design or placing your custom order, Buyer represents and warrants that it owns or otherwise possesses all necessary rights with respect to the design content and that such content does not and will not infringe, misappropriate, use or disclose without authorization, or otherwise violate any copyright, trade secret right, or other intellectual property or other property right of any third party, and that the content is not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene, or otherwise objectionable. Liviri reserves the right, in its sole discretion, to cancel any custom order with content that infringes any intellectual property or is otherwise inappropriate for production. Customized Products may not be modified, cancelled, or returned once the Order Confirmation has been acknowledged by Buyer. Liviri is not responsible for any errors or mistakes that have been approved and does not accept returns of customized Products that are not damaged or defective upon receipt.
LIMITED WARRANTY. Liviri warrants to Buyer that the Products will be free from defects in material and workmanship in accordance with Liviri’s limited warranty provided on the insert included with the Product and on Liviri’s website(s) (the “Limited Warranty”). To obtain warranty service for defective Products, please follow the instructions included in the Limited Warranty. Without limiting anything in the Limited Warranty, Liviri will not be liable for a breach of the Limited Warranty if: (a) the defect arises because Buyer failed to follow Liviri’s oral or written instructions as to the storage, installation, use, or maintenance of the Products; or (b) Buyer alters or repairs such Products without the prior written consent of Liviri. EXCEPT FOR THE LIMITED WARRANTY, OTTER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY: (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
INDEMNIFICATION. Buyer will defend, indemnify, and hold harmless Liviri and its parent company, their respective subsidiaries, affiliates, successors, and assigns, and their respective directors, officers, members, managers, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorneys’ and professional fees and costs, and the cost of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers) (“Claims”) arising out of or occurring in connection with the negligence or willful misconduct of Buyer or its employees or agents, including but not limited to: (a) any misuse or modification of the Products by Buyer or its employees or agents; (b) any act (or failure to act) by Buyer or its employees or agents in contravention of any safety procedures or instructions that Liviri provides to Buyer or its employees or agents; (c) a breach by Buyer or its representatives of this Agreement; or (d) the failure to store, install, operate, or maintain the Products in accordance with the Product instructions.
LIMITATION OF LIABILITY. IN NO EVENT WILL OTTER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT OTTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL OTTER’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 OTTER FOR THE PRODUCTS SOLD UNDER THIS AGREEMENT.
NO LICENSE. Liviri’s sale of Products to Buyer will not confer upon Buyer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by Liviri, its subsidiaries, affiliates, or suppliers. ALL RIGHTS RESERVED. Without limiting the foregoing, Buyer will not use any trademark/trade name of Liviri in connection with the Products without Liviri’s prior written consent
FORCE MAJEURE. Liviri will not be liable for any failures or delays caused by strikes, differences with workers, or any causes beyond the reasonable control of Liviri, including but not limited to fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where delays or failures are caused by labor difficulties, Liviri will not be obligated to seek or obtain any settlement that, in Liviri’s sole judgment, is not in Liviri’s best interest.
COMPLIANCE. Each party will comply with all applicable laws, regulations, and ordinances, and Buyer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by this Agreement.
CHANGES. Liviri reserves the right to alter, modify, or redesign its products without any obligation to replace previous shipments to Buyer.
TERMINATION. In addition to any remedies that may be provided under these Terms, Liviri may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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.
CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Liviri, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Liviri to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Liviri in writing. Upon Liviri’s request, Buyer will promptly return all documents and other materials received from Liviri. Liviri will be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) lawfully obtained by Buyer on a non-confidential basis from a third party.
GOVERNING LAW; VENUE; DISPUTE RESOLUTION. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws Colorado without giving effect to any choice or conflict of law provision or rule (whether of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of Colorado. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted in the federal or state courts located in the Denver, Colorado. Each party irrevocably submits to the exclusive jurisdiction of those courts in any such suit, action, or proceeding.
MISCELLANEOUS. Buyer acknowledges that is has not been induced to purchase any Products from Liviri by any representation or warranty not expressly set forth in this Agreement. None of these Terms may be added to, modified, superseded, or otherwise altered, except by a written document signed by an authorized representative of Liviri that specifically references these Terms and states that it modifies them. If there is a conflict between the provisions of the Sales Confirmation and these Terms, then the terms of the Sales Confirmation will govern. No waiver by Liviri of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by an authorized representative of Liviri. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege under these Terms precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. The section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision. If any provision of this Agreement is held to be prohibited or unenforceable, the provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Buyer will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Liviri. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.