ATKINS & PEARCE, INC. (hereinafter referred to as “Seller”) agrees to sell and supply to Buyer and Buyer agrees to purchase and accept the products (“Product(s)”) described in the online order (“Order”) subject to the following terms and conditions (“T&C”):
These T&C shall be deemed to be accepted by Buyer upon payment for the Order, and shall be a binding contract for the sale of the Products set forth in the Order upon shipment of the Products to Buyer. These T&C shall constitute the sole and exclusive agreement between Seller and Buyer, subject to any express written agreement to the contrary, signed by Seller and Buyer, and supersede any prior offers or agreements between the parties.
2. PACKING AND SHIPPING
A. Product shall be suitably packed and shipped as designated by Seller in accordance with the requirements of the carriers.
B. Products will be shipped F.O.B. Seller’s Facilities in accordance with the Uniform Commercial Code in effect in Kentucky.
C. Unless otherwise specifically set forth in the Order, the stated price shall not include charges for any duties, levies, freight charges, installation charges and any other charges whatsoever in connection with the Product. Buyer shall be responsible for all shipping costs.
D. Seller shall notify Buyer at the email address listed on the Order when the Order has been accepted by Seller and at the time of shipment of the Product to the Carrier. Seller will provide Buyer carrier’s tracking information, if available. In stock Products usually will ship within 48 hours of placement of the Order. Different Products from each Order may be shipped separately.
E. Seller will not be responsible for any delays in delivery which result from any circumstances beyond its control, including without limitation, supplier lead-time changes, product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, declared pandemics or epidemics, general insurrection, acts of God or acts of any government or agency. Any shipping dates provided by Seller are estimates only and are subject to change.
F. Shipping and delivery dates are approximate and are given by Seller in good faith, but are not guaranteed. Buyer shall be responsible for all storage and other costs relating to Buyer’s failure to accept delivery pursuant hereto. All risk of loss shall pass to Buyer upon delivery of the Product by Seller to a carrier at Seller’s facilities.
Payment shall be due at the time of the Order and must be made prior to Seller’s acceptance of the Order. Payments must be made by credit card. Payments will be processed through Seller’s payment processor, Authorize.Net. All payments are subject to the applicable Authorize.Net Data Processing Agreement available at authorize.net.
All currency references are in U.S. dollars. If the credit card or other payment information Buyer provides is invalid for any reason, Seller may suspend or terminate any or all of the Order or Products to be supplied by Seller.
4. CANCELLATIONS AND RETURN POLICY
A. Orders cancelled by the Buyer at any time prior to delivery are subject to charges for all costs and liabilities incurred by the Seller up to such time the Seller is notified in writing of intent to cancel.
B. Buyer must notify Seller within fourteen (14) days of delivery of the Products of its intent to return the Products (“Notice”). Notice must be sent to firstname.lastname@example.org.
Upon receipt of such Notice, Seller will contact Buyer to coordinate return shipment and provide Buyer with return shipping instructions and packaging label at no cost to Buyer. If Seller receives the returned Products in their original form and within fourteen (14) days of Seller’s receipt of such return Notice, Seller will provide Buyer with a full refund issued to the original form of payment as soon as practicable. In the event the returned Products are opened, used or damaged, Seller, in its sole discretion, may refuse to tender the refund or may deduct the cost (including shipping) of the used or damaged Products from the refunded amount. Original shipping costs incurred by Buyer are nonrefundable.
5. ERRORS, INACCURACIES, AND OMISSIONS
Information on this website may contain typographical errors, inaccuracies, or omissions that relate to product descriptions, pricing, promotions, offers, and availability. Seller reserves the right to correct any errors, inaccuracies or omissions and to change or update information or cancel Orders if any information is inaccurate at any time without prior notice (including after Buyer has submitted an Order).
A. Seller warrants to Buyer that all Products shall be free from defects in design, materials and workmanship.
B. Buyer shall notify Seller of any rejection for failure to conform to these T&C. Failure of Buyer to reject any Product within 14 days after receipt shall constitute acceptance.
C. If such nonconformity is claimed by Buyer within such 14 days, a refund may be provided to Buyer in accordance with Section 4. Such refund shall be Buyer’s sole and exclusive remedy for any nonconformity of the Products.
D. Any action on a breach of Seller’s obligations under these T&C must be commenced within one year of shipment date.
E. Seller’s warranty does not apply to any Products to the extent they have been subject to (1) other than normal wear and tear, or (2) improper use, improper installation, improper repair by unauthorized service personnel, tampering, negligence, abuse or accident. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER WITH RESPECT TO ANY DEFECTIVE PRODUCT EXCEED THE ACTUAL PURCHASE PRICE PAID BY BUYER TO SELLER WITH RESPECT TO SUCH PRODUCT SET FORTH IN THIS ORDER, AND IN NO EVENT SHALL SELLER BE LIABLE UNDER ANY AGREEMENT TO BUYER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING THE LOSS OF BUSINESS OPPORTUNITIES AND/OR LOST PROFITS, HOWEVER CAUSED, WHETHER AS A CONSEQUENCE OF THE BREACH OF AN AGREEMENT, THE NEGLIGENCE OF SELLER AND ITS EMPLOYEES OR AGENTS, OR OTHERWISE.
F. Suggestions and advice by Seller for the use of Products are furnished gratuitously and are based upon information believed to be reliable. Buyer’s use of or reliance upon the same shall be at Buyer’s risk. Any agreement between Buyer and Seller concerning advice or assistance given to Buyer by Seller for a separate fee would be contained only in a separate written agreement. This Warranty extends only to the original Buyer of the Products; it does not extend to any subsequent or other owner or transferee of the Product.
G. SELLER’S SOLE WARRANTY AND LIABILITY WITH RESPECT TO THE SALE OF THE PRODUCTS TO BUYER AND USE OF THE PRODUCTS BY BUYER IS HEREIN SET FORTH IN ITS ENTIRETY. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Buyer agrees to protect, defend, reimburse, indemnify and hold Seller free and harmless at all times from and against any and all claims (including 3rd party claims), liability, expenses, losses, demands, damages, fines, causes of action and costs (including attorney’s fees) of every kind and character from any cause whatsoever made, incurred, sustained, or initiated or arising out of, incident to, or in connection with any act or omission of Buyer or any breach of any obligation of Buyer under these T&C.
8. INTELLECTUAL PROPERTY
Unless otherwise noted, Seller’s website, and all features and materials on such site, including text, images, illustrations, designs, icons, photographs, video clips and other content, and the copyrights, trademarks, trade dress and/or other intellectual property in such materials, are owned, controlled or licensed by Seller. Any intellectual or industrial property rights of whatever kind created by, relating to, or obtained through the production of the Products covered by this Order shall belong to and remain the sole property of Seller. Seller retains title and all associated rights to any of its intellectual property supplied to Buyer, including trademarks, trade names, copyrights, patents, trade secrets, product packaging, associated markings, advertising, marketing materials, manuals, specifications and designs, and all intellectual property contained in models, patterns, samples, fixtures, jigs, and custom made tooling, designed, built, and/or modified by the Seller, all of which may not be disclosed to third parties or copied by Buyer without Seller’s prior written consent, which consent may be unreasonably withheld.
9. LINKS TO THIRD PARTY SITES
This website may contain links to sites owned or operated by parties other than Seller. Such links are provided for reference only. Seller does not control outside sites and is not responsible for their content. Seller’s inclusion of links to an outside site does not imply any endorsement of the material on the site or, unless expressly disclosed otherwise, any sponsorship, affiliation or association with its owner, operator or sponsor, nor does Seller’s inclusion of the links imply that Seller is authorized to use any trade name, trademark, logo, legal or official seal or copyrighted symbol that may be reflected in the linked site.
10. DATA PRIVACY AND SECURITY
A. Buyer acknowledges and agrees that Seller collects the personal information Buyer provides Seller in connection with Buyer’s purchase transaction, such as name and telephone number. Seller also collects and maintain records and history about Buyer’s purchases and product preferences. If Buyer pays by credit card, Buyer provides Seller with its account information. Such information may be used for one or more of the following reasons: process and complete Buyer’s transaction; identify product and service offerings; improve product offerings and customer service; respond to Buyer inquiries; customize the advertising and services shown; collect aggregated site-visitation statistics; and assist in fraud prevention.
B. Seller and some of its third-party service providers use “cookies”. A “cookie” is a small text file written by an Internet server to a Website user’s browser where information is exchanged between them, and which is stored on a computer’s hard drive to allow Seller to recognize and track users on the website to assist in providing customers with a productive online experience. Cookies enable Seller to store information about Buyer’s use of the Website. Should Buyer choose to disable any cookies associated with the Website, Buyer will not be able to take full advantage of all the Website’s features.
C. Seller may share certain personal information collected about Buyer as necessary with third parties who perform services for Seller, such as hosting services, payments processing and data analytics. Except as described herein, or to comply with applicable laws or valid legal process, or to protect the rights or property of Seller, Seller will not disclose any personal identifiable information about its customers. Seller is committed to protecting Buyer’s personal information. All information that Buyer provides is stored on secure servers.
These T&C are effective unless and until terminated by either Buyer or Seller. Seller may terminate this Agreement at any time without notice, and accordingly may deny Buyer access to such websites of Seller, if in Seller’s sole judgment, Buyer fails to comply with any term or provision set forth herein. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination for all purposes.
Any taxes, excises, or fees whatsoever of any federal, state or local government or any of their political subdivisions presently existing or hereinafter arising in connection with the manufacture and sale of the Products designated with this Order will be paid by the party responsible therefor. Any sales taxes will be assessed upon consummation of the Order.
13. AMENDMENTS / WAIVER
Seller may modify these T&C from time to time, in its sole discretion, and effective upon publishing on Seller’s website. No waiver by Seller of any of the provisions herein is effective unless explicitly set forth in writing and signed by Seller. Orders made through the website shall be solely governed by these T&C irrespective of any other or prior agreements between the parties for similar products.
14. APPLICABLE LAW
The rights and obligations of the parties shall be determined according to the laws of the State of Kentucky and the Order and the contract arising therefrom shall be deemed to be made in Kentucky. Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the courts of Kenton County, Kentucky, or the U.S. District Court for the Eastern District of Kentucky. Both parties irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
A. Buyer acknowledges that Seller has informed it that US law and US Export Administration Regulations govern, and may prohibit the re-export or other disposition of Products and related technical data received by Buyer or its customers without prior US government approval.
B. Buyer agrees that diversion of Products from destinations identified in the Shipper’s Export Declaration constitutes a fundamental and material breach under these T&C. If Products are diverted from intended destinations, the sale may be voided in the sole discretion of Seller, and all right, title and interest in Products shall revert to Seller. In the event of such breach, Buyer shall be liable to Seller for all costs, fees and expenses incurred by Seller in connection with recovery of Products, including reasonable attorney fees.
C. Buyer agrees and warrants that in performance of its obligations under these T&C, it will comply with US Foreign Corrupt Practices Act.
D. Buyer acknowledges that it has reviewed and accepts Seller’s EU REACH, EU RoHS, California Proposition 65, and Dodd-Frank Conflict Minerals Rule disclosures and disclaimer found here, which are expressly incorporated herein, and agrees to comply with any applicable reporting or labeling requirements set forth in such disclosures.
Any questions, issues or concerns about an Order or the Products shall be directed to: email@example.com.
*ATKINS & PEARCE E-COMERCE TERMS AND CONDITIONS LAST REVISED: 9/22/20.