General Terms and Conditions for the Sale of WINECAB
- These terms and conditions of sale (these “Terms”) govern the sale by WineCab, LLC, a New York limited liability company (“Seller”), to the buyer (“Buyer”) of the Seller’s Win Cab (the “Product”).
- These Terms together with the Seller’s invoice for the Product and the limited warranty (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.
- The Product will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of the Product. Seller shall not be liable for any delays, loss or damage in transit.
- Unless otherwise agreed in writing by the parties, Seller shall deliver the Product to the address specified in the Buyer’s purchase order (the “Delivery Point”) using Seller’s standard methods for packaging and shipping.
- If for any reason Buyer fails to accept delivery of the Product on the date fixed pursuant to Seller’s notice that the Product has been shipped to the Delivery Point, or if Seller is unable to deliver the Product at the Delivery Point on such date because Buyer has not provided appropriate instructions: (i) risk of loss to the Product shall pass to Buyer; (ii) the Product shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Product until Buyer picks it up and Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- The Seller shall not be liable for any non-delivery of the Product (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within two (2) days of the date when the Product would in the ordinary course of events have been received.
- Any liability of Seller for non-delivery of the Product shall be limited to replacing the Product within a reasonable time.
- Title and Risk of Loss.
Title passes to Buyer upon payment in full of the purchase price for the Product. Risk of loss passes to Buyer upon delivery of the Product at the Delivery Point. As collateral security for the payment of the purchase price of the Product, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Product, wherever located, and in all accessions thereto and replacements or modifications thereof, 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 New York State Uniform Commercial Code.
- Amendment and Modification.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
- Inspection and Rejection of Nonconforming Product.
- Buyer shall inspect the Product upon receipt (“Inspection Period”). Buyer will be deemed to have accepted the Product unless it immediately notifies Seller in writing that (i) the product shipped is different than identified in Buyer’s purchase order; or (ii) the product’s label or packaging incorrectly identifies its contents.
- If Buyer timely notifies Seller of any nonconforming product, Seller shall, in its sole discretion, (i) replace the nonconforming product with a conforming Product, or (ii) credit or refund the purchase price for such nonconforming product, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the nonconforming product to Seller’s facility located at 855 Publishers Parkway, Webster, New York 14580. If Seller exercises its option to replace any nonconforming product, Seller shall, after receiving Buyer’s shipment of a nonconforming product, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Product to the Delivery Point.
- Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for the delivery of a nonconforming product. Except as provided under Section 6(b), all sales of the Product to Buyer are made on a one-way basis and Buyer has no right to return the Product purchased under this Agreement to Seller.
- Buyer shall purchase the Product from Seller at the price set forth in Seller’s invoice.
- The purchase price for the Product is exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes.
- Payment Terms.
- Buyer shall pay all invoiced amounts due to Seller under the payment terms of Seller’s invoice. Buyer shall make all payments hereunder by credit card, wire transfer or check and in US dollars.
- Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, 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.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. 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.
- No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. Accordingly, Buyer agrees that the product is being purchased for personal use and is not purchasing with the intent, and hereby agrees not to reverse engineer Seller’s Product.
- Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
- Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in Monroe County, New York State, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
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 including, but not limited to, the following provisions: Governing Law, Submission to Jurisdiction and Survival.
- Limited Liability.
To the extent allowable by law, Seller shall not be liable other than as so specified in these General Terms and Conditions. Specifically, Seller hereby disclaims and shall not be liable for any consequential, special, punitive, indirect or other damages or losses.