For Terms and Conditions of Sale - Equipment, scroll below.

TERMS AND CONDITIONS OF SALE

1. Terms and Conditions: These Terms and Conditions of Sale (“Terms”) shall apply to the sale of Products by La Colombe to Customer and constitute the entire agreement between La Colombe and Customer with respect to Customer’s purchase and La Colombe’s sale of Products, to the exclusion of any pre-printed or contrary terms of any purchase order (or similar document) and supersedes and cancels any prior discussions, understandings or representations between La Colombe and Customer. La Colombe expressly rejects Customer’s general terms and conditions of purchase, and fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions or serve to modify or amend these Terms. No addition to or modification of these Terms shall be binding upon La Colombe unless expressly agreed to by La Colombe in writing, and, if these Terms are deemed an offer, acceptance is expressly limited to these Terms. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products (“Existing Agreement”), then the Existing Agreement shall prevail to the extent of any inconsistency with these Terms.

2. Definitions: Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in Section 19 below.

3. Purchase Orders: Customer’s purchase order shall be an offer to buy, under these Terms, all Products listed in such order. All orders must be accepted by La Colombe (which acceptance may be evidenced by La Colombe’s shipment of Product) or La Colombe will not be obligated to sell the Products to Customer. La Colombe may choose not to accept purchase orders at its sole discretion. If an order exceeds La Colombe’s inventory, La Colombe may allocate available inventory in La Colombe’s discretion, without liability to Customer or any third party.

4. Price and Payment Terms: The price payable for the Products purchased by Customer shall be La Colombe’s published price list in force as of the date of the purchase order (the “Purchase Price”). Customer shall be responsible for the payment of all taxes, withholding, duties and other governmental assessments upon or with respect to the sale, purchase, use, receipt or shipment of Products (other than taxes based solely on La Colombe’s net income), including, without limitation, sales or use tax or similar taxes, provided that La Colombe will not invoice Customer for taxes to the extent Customer has provided La Colombe with evidence that Customer is exempt from paying and/or La Colombe is exempt from collecting such tax. The Purchase Price shall be paid in U.S. Dollars. If Customer has been approved by La Colombe for credit, Customer shall pay all amounts invoiced within 14 days from invoice date. La Colombe reserves the right to require pre-payment in its sole discretion. All sums not paid when due will accrue interest daily at the lesser of an annual rate of 18% or the highest rate permissible by law on the unpaid balance until paid in full. Customer shall have no right to offset or deduct any amount from the amounts owed to La Colombe. In any action by La Colombe to enforce its right to payment, La Colombe shall be entitled to recover its reasonable attorneys’ fees, costs or other expenses to the extent it is the prevailing party. Purchase orders placed via La Colombe’s website may be paid by approved credit cards. In paying by credit card, Customer represents and warrants that (i) the credit card information Customer supplies to La Colombe is true, correct and complete, (ii) Customer is duly authorized to use such credit card for the purchase, (iii) charges incurred by Customer will be honored by Customer’s credit card company, and (iv) Customer will pay charges incurred by Customer at the posted prices, including, if applicable, shipping and handling charges and all applicable taxes.

5. Delivery: The Products will be delivered within a reasonable time after receipt of the Buyer’s purchase order, subject to availability of the Products. Shipping and delivery dates are estimates only and cannot be guaranteed. La Colombe is not liable for any delays in shipment. Unless otherwise agreed in writing by the Parties, La Colombe shall deliver the Products to Customer’s address as specified in its purchase order using La Colombe’s standard methods for packaging and shipping such Products. La Colombe may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order. Customer will pay all shipping and handling charges, unless otherwise agreed in writing by the Parties. Title and risk of loss of Products shall pass to Customer upon delivery.

6. Returns: Please contact La Colombe’s Client Services department to verify a Product’s eligibility for return.

7. Quality Assurance: La Colombe shall have no obligation to ensure that any Products purchased from La Colombe meet any special quality assurance specifications and/or other requirements of Customer unless such specifications and/or other requirements are expressly agreed to in writing by La Colombe.

8. Default: If Customer (a) fails to tender any payment when due in accordance with these Terms and the terms of the applicable invoice, (b) is determined by La Colombe to be likely to default in any such payment, including without limitation if Customer is unable, or states that is unable, to pay its debts as and when they become due or where a receiver is appointed for all or any portion of the assets of Customer, or (c) fails in any other respect to perform its obligations in accordance with these Terms, the occurrence of any of the events specified in clauses (a) – (c) above being deemed to constitute a material breach hereof, La Colombe may treat such default as (i) a total breach of the entire contract, or (ii) a breach only as to the individual shipment or installment, and, in addition to any other rights or remedies which La Colombe may have at law or in equity, La Colombe may (x) cancel Customer’s purchase order, (y) terminate Customer’s purchase order as to the portion thereof in default or as to any unshipped balance, or both. All rights and remedies of La Colombe shall be cumulative and not exclusive of any other rights or remedies which La Colombe would otherwise have at law or in equity.

9. Descriptions and Specifications; Samples: To the extent permitted by applicable law, all descriptive specifications and other data furnished by La Colombe or otherwise contained online or in catalogues or other advertising materials are approximate only and are intended to be merely a general description of Products and are not incorporated by reference into any agreement between La Colombe and Customer, under these Terms or otherwise. To the extent permitted by applicable law, any sample, description or visual representation or details of Product provided by La Colombe to Customer are representative only, and the actual Product delivered may differ, provided such differences are not materially adverse to Customer, as reasonably determined by La Colombe.

10. Warranty; Limitation of Liability: La Colombe represents and warrants to Customer that, as of the date of shipment (a) La Colombe has the right to convey good title to the Product, (b) the Product is not adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, and (c) the Product is not an article which may not be introduced into interstate commerce.

EXCEPT AS EXPRESSLY SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, LA COLOMBE HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT SHALL LA COLOMBE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL OR INDIRECT DAMAGES WHATSOEVER INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOST PROFITS, DAMAGE TO GOODWILL OR REPUTATION, BUSINESS INTERRUPTION, OTHER INDIRECT PECUNIARY LOSS OR OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE, FAILURE TO WARN OR STRICT LIABILITY), CONTRIBUTION, INDEMNITY, SUBROGATION OR OTHERWISE, EVEN IF LA COLOMBE HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. CUSTOMER ASSUMES ALL RISKS AND LIABILITIES FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE USE OR SUBSEQUENT SALE OF THE PRODUCTS, EITHER ALONE OR IN COMBINATION WITH OTHER PRODUCTS.

11. Exclusive Remedy: Customer’s exclusive remedy and La Colombe’s sole liability for shipment of nonconforming Product, including breach of the limited warranty set forth in Section 10 above, is expressly limited to either, at La Colombe’s sole discretion, (i) a refund of the Purchase Price paid by Customer with respect to such Product or (ii) replacement of such Product with conforming Product. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE REMEDIES GRANTED TO IT HEREUNDER ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIM BY CUSTOMER IN CONNECTION WITH OR RELATING TO THE PRODUCTS.

12. Force Majeure: Neither party shall be liable for any delay or failure to carry out or make continuously available its obligations hereunder if such delay or failure is due to any cause beyond such party’s control, whether foreseeable or unforeseeable, including without limitation restrictions of law or regulations, labor disputes, acts of God, flood, fire, earthquake, acts of terrorism or war, telecommunications, network or power failure or interruptions, mechanical or electrical breakdowns, shortage of supplies, power and/or transportation, pandemic, epidemic, national or regional emergency, government mandates or executive orders and/or lockdowns (a “Force Majeure Event”). The party affected by the Force Majeure Event must give notice to the other party of such event. During the Force Majeure Event, the parties will negotiate in good faith to address the Force Majeure Event in a fair and equitable manner and will extend any timelines for completion by a period of time reasonably necessary to overcome the effects of the Force Majeure Event.  The impacted party shall not be liable for any loss, costs or damages resulting from such delay or failure to perform its obligations hereunder.

13. Confidential Information; Duty Not to Disclose: Customer agrees that it shall not use or disclose, or permit the use or disclosure of, La Colombe Confidential Information, except as required by these Terms. All use or disclosure of La Colombe Confidential Information shall be for the sole and exclusive benefit of La Colombe. Customer shall obtain La Colombe’s written consent prior to any publication, presentation, public announcement or press release concerning its relationship as a Customer of La Colombe and shall not disclose the terms of any purchase order accepted by La Colombe other than to such of Customer’s employees who have a need to know such information in the ordinary course of Customer’s business.

15. Intellectual Property Rights: All Intellectual Property of either party hereto, and all modifications thereto, shall at all times be and remain the sole and exclusive property of such party, and neither these Terms nor any purchase order submitted by Customer and accepted by La Colombe hereunder shall constitute a license to either party to use or display the Intellectual Property of the other party, except to the limited extent necessary in connection with its performance under any such purchase order.

16. Audit Rights: La Colombe may, upon at least 15 days prior written notice, inspect, or have an accountant or auditor inspect, Customer’s books and records relating to these Terms, Customer’s purchase orders and Customer’s compliance herewith and therewith, for up to two (2) years of prior records from the date of such audit. Any such audit will be conducted during Customer’s normal business hours and in a manner that does not interfere with Customer’s normal business operations. In the event the cost of any such audit shall exceed $2,000, Customer shall reimburse La Colombe for such excess cost.

17. Export Laws: Customer acknowledges that sales of the Products may be subject to export and import control laws, restrictions and regulations imposed by the United States or other jurisdictions. Customer shall comply with all applicable export laws, restrictions and regulations of the United States, the European Union or other foreign agency or authority and agrees not to import, export or re-export, or allow the import, export or re-export of, any Product in violation of any such laws, restrictions or regulations. Customer hereby certifies to La Colombe that neither it nor any of its customers is on any U.S. government restricted parties list or similar list and shall be solely responsible for obtaining any and all necessary licenses in connection with the import, export or re-export of Products.

18. Foreign Corrupt Practices Act: In conformity with the US Foreign Corrupt Practices Act, or any other applicable anti-corruption law, and La Colombe’s guidelines related thereto, Customer shall not directly or indirectly make an offer, payment, promise to pay, authorize payment, promise to give, or otherwise induce the giving of anything of value for the purpose of influencing an act or decision of an official of any government entity, political party or office (including a decision not to act) to affect any act or decision in order to assist Customer or La Colombe, in obtaining, retaining or directing any business. Any violation of this provision is considered a material breach of contract, allowing for immediate termination by La Colombe without notice or opportunity to cure, and Customer will indemnify La Colombe for associated costs.

19. General: