Terms and Conditions - Comix Cafe
These Standard Terms and Conditions for the sale of goods and/or services (“Agreement”) is between COMIX Cafe, a Houston Texas Company, and the party contracting to purchase COMIX Cafe goods and services (“Products”) hereunder (“Buyer”). Buyer represents and warrants to COMIX Cafe that Buyer has the authority and right to enter into this Agreement without breaching or violating any fiduciary, contractual, statutory, or other legal obligations. This Agreement is for the sole benefit of the parties hereto and not for the benefit of any third person, firm, corporation or other entity, and nothing contained herein shall be construed to create any rights benefits, remedies, obligations, or liabilities for any third party under this Agreement.
2. BUYER ACCEPTANCE AND ORDER ACKNOWLEDGMENT
This Agreement, along with COMIX Cafe proposal or quotation, COMIX Cafe catalogs, and COMIX Cafe acknowledgement, shall be the only terms and conditions applicable to the sale of COMIX Cafe Products. COMIX Cafe provides Products to Buyer, subject to the terms and conditions as set forth herein. Upon acceptance, Buyer shall incorporate or otherwise acknowledge in Buyer’s purchase order or contract, the terms and conditions contained in this Agreement without alteration. In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions contained in COMIX Cafe confirmation or acknowledgment or any other conflict, the terms and conditions contained in this Agreement, together with any special provisions contained in COMIX Cafe proposal, if any, shall control. By accepting the Product, Buyer agrees to be bound by and comply with all terms and conditions contained in this Agreement, including any supplements thereto, and all specifications and other documents referred to herein. COMIX Cafe hereby rejects any purchase order, acknowledgement, counteroffer, other document(s), or any other attempt by Buyer, which contain terms and conditions that are different than, inconsistent with, or in addition to the terms and conditions contained in this Agreement. If COMIX Cafe is unable to furnish any Products on the purchase order in quantity, size, or otherwise, as specified and described on the purchase order, the order acknowledgment will so indicate within fifteen (15) days and provide details as to recommended substitutes including product number, description, price and availability, as applicable.
3. GENERAL TERMS AGREEMENTS
If a Product Support Agreement or a General Terms Agreement has been definitized by COMIX Cafe with Buyer, the terms of such agreement(s), where applicable, shall have precedence over these terms and conditions.
4. TITLE, DELIVERY, and PACKAGING
COMIX Cafe warrants to Buyer that it will convey good title to the Product(s) sold hereunder. COMIX Cafe liability and Buyer’s remedy under this title warranty is limited to the removal of any title defect or, at the election of COMIX Cafe, to the replacement of the Product(s) thereof, which are defective in title. Product(s) sold hereunder shall become the property of Buyer upon delivery of the Product(s) by COMIX Cafe distribution point to the carrier designated by Buyer or, in the absence of such designation, to the carrier selected by COMIX Cafe for shipment to Buyer. Title to and risk of loss or damage shall pass to Buyer upon such delivery. COMIX Cafe shall deliver the Product(s) in accordance with its Confirmation Notices or Acknowledgements, or other mutually agreed upon schedules. Shipping dates are given to the best of COMIX Cafe knowledge based upon conditions existing at the time the order is placed and information furnished by Buyer. COMIX Cafe will in good faith, endeavor to ship by the estimated shipping date but shall not be responsible for any delay or any damage if the Product(s) are not shipped by such date. COMIX Cafe shall not be responsible for failure or delay in shipping, when such failure or delay is due to any cause beyond COMIX Cafe reasonable control, Excusable Delay herein. In the event of any such delay, COMIX Cafe shall have such additional time as reasonably necessary to deliver the Product(s). COMIX Cafe reserves the right to deliver Product(s) in advance of COMIX Cafe acknowledged order schedule. Product(s) will be packaged, unless otherwise specified, in containers commercially suitable for domestic or international shipment. Each container shall be suitably marked as set forth in the applicable purchase order.
5. PRICES AND CONDITIONS OF PAYMENT
All prices for Product(s) provided hereunder shall be in U.S. Dollars, unless otherwise agreed. Payment is due at time of purchase.
New Products supplied by COMIX Cafe under any purchase order, not otherwise warranted per a separate agreement, are warranted to be “as it is”, at the time of delivery.
THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. NO OTHER WARRANTIES OF ANY KIND, WHATSOEVER, WHETHER EXPRESS OR IMPLIED, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, SHALL APPLY.
THE REMEDIES SET FORTH HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER FOR ANY CLAIMS, EXPENSES OR DAMAGE ARISING OUT OF OR RELATED TO PRODUCTS DELIVERED UNDER THIS CONTRACT. IN NO EVENT SHALL COMIX CAFE BE LIABLE IN TORT OR CONTRACT OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY OF LAW, FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES.
IN THE EVENT BUYER DOES NOT COMPLY WITH THE PROVISIONS OF THIS TERMS, BUYER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS COMIX CAFE FROM ANY AND ALL CLAIMS, LOSS OR EXPENSE RESULTING DIRECTLY OR INDIRECTLY FROM ANY TRANSACTION BETWEEN THE PARTIES.
7. LIMITATION OF LIABILITY & REMEDIES
Notwithstanding any other provision of this Agreement, in the event, the Buyer claims that COMIX Cafe has breached any of its obligations under this Agreement, the total cumulative liability of COMIX Cafe, for all claims, including but not limited to claims based on COMIX Cafe negligence of any degree, strict liability, breach of contract, warranty, intellectual property, or otherwise, shall not exceed the purchase price of the sale, delivery, or use of the Product which gives rise to the claim, and any such liability shall terminate upon the expiration of the warranty period. COMIX Cafe may request the return of the Product purchased hereunder and tender to Buyer the purchase price paid by Buyer, and in such event, COMIX Cafe shall have no further obligation under this Agreement except to refund such purchase price upon return of the Product. If COMIX Cafe so requests, the Product shall be returned to COMIX Cafe in accordance with COMIX Cafe instructions to Buyer, at COMIX Cafe expense.
NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, COMIX CAFE SHALL NOT BE LIABLE TO BUYER WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE, WHATSOEVER, OR FOR DAMAGE OR LOSS OF PROPERTY OR EQUIPMENT FURNISHED UNDER THIS AGREEMENT, LOSS OF USE OF EQUIPMENT, LOSS OF PROFITS OR REVENUES OR THE LOSS OF USE THEREOF, OR CLAIMS OF ANY CUSTOMERS OF BUYER OR OTHER THIRD PARTIES.
8. SALES AND USE TAXES
COMIX Cafe shall only be responsible for the payment of income taxes and gross receipt taxes, if any, derived from the sale of its Products. Buyer shall be responsible for the payment of all other taxes, including but not limited to sales taxes, use taxes, duties, licenses, fees, or other charges of any nature levied in connection with the sale, use and/or delivery of Products under this Agreement. Upon COMIX Cafe request, Buyer shall provide to COMIX Cafe evidence of exportation or other evidence of tax or duty exemption. If COMIX Cafe, for any reason, pays for any taxes, duties, licenses, fees, or other charges for which Buyer is responsible, Buyer shall promptly reimburse COMIX Cafe for such payment, along with any other expenses related thereto, upon receipt of COMIX Cafe invoice.
9. MODIFICATIONS AND APPLICABLE LAWS
No modifications of this Agreement or any issued purchase orders shall be binding unless in writing signed by both parties hereto. This Agreement shall be interpreted in accordance with and construed by the laws of the state or territory from where the sale is made, without regard to its conflict-of-laws provisions. The provisions of the Convention for the International Sale of Goods are expressly excluded from this Agreement.
10. EXCUSABLE DELAYS
COMIX Cafe shall not be liable for any delay or failure to perform if such delay or failure is due to causes beyond the control, and without fault or negligence, of COMIX Cafe including, but not limited to, acts of God or the public enemy, acts of terrorism, acts of Government, insurrections, fires, floods, explosions, epidemics, quarantine restrictions, strikes and freight embargoes. To the extent that such causes actually delay deliveries on the part of COMIX Cafe, the time for the performance shall be extended for as many days beyond the date thereof as is required to obtain removal of such causes. COMIX Cafe shall promptly notify Buyer when an excusable delay has occurred or when COMIX Cafe reasonably believes that such the occurrence of an excusable delay is inevitable.
11. INTELLECTUAL PROPERTY INDEMNITY
COMIX Cafe agrees that it shall, at its own expense and at its sole option, defend or settle any claim, suit, or proceeding brought against Buyer or any customer expressly indemnified by Buyer based on an allegation that any Product furnished under this sales contract directly infringes any claim of any United States patent. This obligation shall be effective only if: (a) Buyer has made all payments then due; (b) the product is the design of COMIX Cafe and not made in accordance with drawings, samples, or manufacturing specifications designated by Buyer; (c) COMIX Cafe is notified of said allegation promptly in writing; and (d) COMIX Cafe is given full opportunity and authority, information, and assistance to conduct the sole defense of said claim, suit, or proceeding, including settlement and appeals. Provided all the foregoing conditions have been met, COMIX Cafe shall either settle such claim, or pay all court awarded damages, excluding indirect, incidental, special, consequential and punitive damages. In the event of a final adjudication by a court of competent jurisdiction enjoining the use or sale of the product, or if the provisions of any negotiated settlement agreement prohibit the use or sale of the Product, COMIX Cafe shall at its sole option and its own expense, either: (a) procure for Buyer the right to continue using the Product; (b) replace it with a substantially equivalent non-infringing Product; (c) modify it so it becomes non infringing but substantially equivalent; or (d) if none of the above is reasonably available, terminate the Buyer’s right to use the Product and return to the Buyer a pro rata portion of the price originally paid by Buyer to COMIX Cafe represented by the remaining useful life of the Product as a percentage of the total useful life. The foregoing obligation does not apply to the following: (a) any claim of infringement resulting from changes or modifications made to or from the Product by the Buyer; (b) any settlement of a claim, suit, or proceeding made without COMIX Cafe written consent; and (c) any claim of infringement for products on a U.S. Government application. The foregoing states the entire liability of COMIX Cafe with respect to infringement or violation of third party intellectual property rights about products furnished under this Agreement.
Seller’s electronic firmware assemblies contain computer programs that may be protected by copyright. Regardless of the copyright status, no computer programs may be reproduced, in whole or in part, in any form, without prior written authorization from Seller. Seller warranties shall not apply to any unauthorized copies and any unauthorized copying shall free Seller from all liabilities from use of the unauthorized copies.
12. DISPUTE RESOLUTION
All disputes, controversies or claims arising under or relating to any purchase order or breach, termination, or invalidation under this Agreement shall upon written notice, be referred to the respective representatives for each party. The parties, through their representatives and/or senior management shall confer in good faith to attempt to resolve the matter. If the parties are unable to resolve the matter within a reasonable amount of time, either party may refer the matter to administered mediation. If the parties are unable to fully resolve the dispute or claim through mediation, then either party may file a lawsuit in a court of competent jurisdiction.
Buyer shall provide COMIX Cafe with a contact person and address for all notifications that COMIX Cafe may send to Buyer under this Agreement. Buyer shall send its notices to COMIX Cafe to the following address:
14. GOVERNING LANGUAGE
This Agreement, and all oral communications, writings, documents and technical information shall be in and governed by the English language.
COMIX Cafe failure to either enforce or exercise any right, privilege, or legal remedy at any time, any provision contained in this Agreement or in a Confirmation or Acknowledgement, shall not be deemed a waiver of such provisions or right, remedy, or privilege.
If this Agreement expires, is completed, or is terminated, Buyer shall not be relieved of those obligations contained in the following provisions:
Article 6 – Warranty
Article 8 – Sales and Use Tax
Article 9 – Modifications and Applicable Laws
17. SECTION HEADINGS
Section headings are for the convenience of the parties only and shall not be used to construe or interpret the terms and conditions contained herein.
If any provision of this Agreement or in COMIX Cafe Confirmation or Acknowledgement may be invalid, unlawful or incapable of being enforced by a rule of law or public policy, all other provisions shall, nonetheless, remain in full force and effect.
The parties are not permitted to issue news release, public announcement, advertisement, or any other form of publication concerning this Agreement. News releases, public announcements, advertisements, or any other form of publication concerning this Agreement is only permitted with the advance written approval of the other party which shall not be unreasonably withheld.
20. ENTIRE AGREEMENT
This Agreement, together with any purchase orders issued pursuant to this Agreement, including attachments and documents incorporated herein by reference, constitutes the entire agreement between COMIX Cafe and Buyer, and supersedes all prior representations, agreements, understandings, and communications between COMIX Cafe and Buyer.