TERMS AND CONDITIONS OF SALE
Unless otherwise specifically agreed to in writing by an authorized representative of Seller, these Terms and Conditions of Sale (these “Terms”) shall apply to any and all orders placed by Buyer for any of Seller’s motorcycle/scooter-related products or accessories (the “Products”). “Buyer” means the individual or entity placing an order for or otherwise purchasing Products. “Seller” means GIVI USA, Inc., a North Carolina corporation.
1. Acceptance. All orders received from Buyer are subject to acceptance by Seller, and Seller reserves the right, in its sole discretion, not to accept any order. Acceptance of any order is subject to the availability of the ordered Products and the ability of Seller to deliver such Products. Seller’s acceptance shall be evidenced by (i) delivery of an order acknowledgement to Buyer or (ii) Seller’s commencement of the work necessary to provide the Products. Unless Seller expressly agrees in writing, these Terms will govern all purchases of Products, and Seller’s acceptance of any order submitted by Buyer is conditioned on Buyer’s acceptance of these Terms. Seller specifically rejects, and Buyer disclaims, any different or additional terms contained in Buyer’s order and any other Buyer forms or documents. Seller’s failure to object to any term or condition in any communication from Buyer will not be construed as agreement to such term or condition, nor will it be deemed a waiver of these Terms. If Seller’s order acknowledgement, invoice or other document or electronic transmittal including or attaching these Terms is found to be an acceptance of an offer from Buyer, acceptance is expressly made conditional upon Buyer’s assent solely to these Terms, and acceptance of any Products delivered or provided by Seller shall be deemed to constitute such assent by Buyer. If Seller’s order acknowledgement, invoice or other document or electronic transmittal including or attaching these Terms constitutes an offer, Buyer’s acceptance of the offer is hereby limited to the terms of the offer, including these Terms. Seller reserves the right to refuse to accept orders or direct shipments to destinations outside the United States.
2. Prices. All prices are quoted F.O.B. Seller’s facility, unless otherwise agreed in writing. Prices do not include any cost of freight, insurance, special packaging or insulation, any cost of inspection, permits or other compliance with governmental laws and regulations, or any federal, state or municipal sales, use, excise, customs or other similar taxes, duties or fees, or any other charges, all of which must be paid by the Buyer unless Buyer furnishes Seller with a tax exemption certificate acceptable to the appropriate taxing authority. Buyer shall indemnify Seller for and hold Seller harmless from any liability, penalties or expenses incurred by Seller as a result of its reliance upon such certificate. Changes in tariffs, freight rates or transportation costs used in determining quoted prices that occur after sale and prior to shipment will be for the account of Buyer.
3. Payment. Unless credit terms have been extended to Buyer in writing by Seller, payment terms are Net 30 days from the date of invoice. All payments shall be made in lawful currency of the United States of America. Seller reserves the right to modify or withdraw credit terms at any time without notice and to require guaranties, security or payment in advance of the amount of credit. If Buyer fails to make any payment when due, Seller may defer further shipment to Buyer or, at Seller’s option, cancel shipment of all or any unshipped portion of the Buyer’s order. Buyer agrees to pay interest on all past due invoices at the rate of one and one-half percent (1½%) per month (eighteen percent (18%) per annum), or if less, the maximum rate permitted by applicable law. Such interest shall be computed on the basis of a 365-day year and the actual days elapsed to accrue from the date such payment is due until paid in full. In addition, Buyer agrees to pay all costs, including reasonable attorneys’ fees and legal costs, incurred by Seller in connection with any suit, action or proceeding to collect any amounts owed to Seller under these Terms or any order subject to these Terms. As collateral security for the payment of the purchase price of the Products, 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 Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, 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 Section 3 constitutes a purchase money security interest under the North Carolina Uniform Commercial Code.
4. Terms of Shipment; Title and Risk of Loss; Acceptance. Seller will ship the Products F.O.B. Seller’s facility to the address provided by Buyer. Title to and risk of loss for the ordered Products passes to the Buyer upon delivery to the carrier. Any prepayment by Seller of freight charges shall be stated in the delivery documents for the Products. By accepting Products from the carrier, Buyer agrees that they are free from defects that a reasonable careful inspection would disclose.
5. Date of Shipment. Buyer acknowledges that all shipping dates are Seller’s estimate of such dates based upon conditions existing at the time the order is placed and on information furnished by Buyer and are not firm commitments. Seller will endeavor to ship Products by the estimated shipping date but shall not be responsible for any delay or damages arising from any failure to ship by the estimated shipping date. Time is not of the essence with respect to the transactions covered by these Terms, except with respect to Buyer’s obligation to make all payments hereunder. Seller will not be liable for any delay in shipping or performance or non-delivery for any reason, including, but not limited to, any delay or non-delivery caused directly or indirectly by a Force Majeure Event (as defined in Section 13). Buyer agrees that any delay in delivery or failure to deliver or perform any part of these Terms shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no claim or penalty shall be effective against Seller for such delay. Seller may, in its sole discretion and without liability or penalty, make partial shipments of Products to Buyer.
6. Will Call. Any order that is placed for will call and is not picked up within five days of the will call date will be canceled and the applicable Products will be placed back into inventory.
7. Returned Products. In the event it is necessary to return a Product to Seller, Buyer must follow the procedure outlined in this Section 7. Products are not returnable unless authorized by Seller in accordance with the terms of this Section. Request for permission to return a Product must be made in writing to Seller within 90 days from the date of shipment of such Product, except with respect to a defective Product (which is subject to the terms of the limited warranty set forth in Section 9 of these Terms). A Return Materials Authorization (“RMA”) number, supplied by Seller, must accompany the return shipment, and Buyer must provide the original Seller invoice number with the RMA. Any returned Product must be in an excellent, resalable condition and packaged in the original container. Any Product returned with a damaged container, missing components, or other damage not caused by Seller will be assessed a higher restocking fee to cover the cost of replacements. Each returned Product will be inspected upon return and any service or repair needed to place such Product in first class, resalable condition will be charged and added to the restocking charge described below. Each returned Product must be received by Seller within 30 days of issuance of the applicable RMA. Credit will be issued for only the actual quantity received and will be based on original invoice price, or the price in effect at the time of the return shipment, whichever is lower. Stock Product order returns are subject to a minimum 15% restocking fee (inclusive of outbound freight). Products may not be returned if they are non-standard, made-to-order, or manufactured to Buyer’s specific design or specifications, or if such Products are outdated or discontinued stock Products. Seller reserves the right to deduct for any damage sustained in transit. Unauthorized returns will be refused. Any Product returned without proper authorization from Seller will, at the sole option of Seller, be returned to Buyer freight collect, or scrapped immediately with no issuance of credit. Unauthorized material included in an otherwise authorized return will not be credited. Seller may dispose of this material in its sole discretion. If the return of any Product is made necessary through any fault of Seller and permission is granted for its return, Seller will give Buyer full credit for the return, including all transportation charges if returned per transportation routing instructions on the RMA. The Buyer shall remain absolutely liable for the purchase price of all Products purchased hereunder, and Seller will not be bound by terms and conditions imposed by any third party.
8. Changes in Product Design or Manufacture. Seller shall have the right to change, discontinue or modify the design or production of any of its Products and to substitute material equal to or superior to that originally specified.
9. Limited Warranty. Seller shall provide to the original purchaser a limited warranty for each of Seller’s Products purchased under these Terms. The terms, limitations and exclusions of this limited warranty are available at http://www.giviusa.com/limited-warranty. Seller reserves the right to modify its limited warranty at any time in its sole discretion. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, SELLER PROVIDES THE PRODUCTS AS-IS AND MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, AND HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES RELATING DIRECTLY OR INDIRECTLY TO THE PRODUCTS, WHETHER ORAL, WRITTEN OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER OR ANY EMPLOYEE, AGENT, DEALER OR OTHER SUPPLIER OF SELLER’S PRODUCTS SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTY SET FORTH ABOVE. NO EMPLOYEE, AGENT, DEALER OR OTHER SUPPLIER OF SELLER’S PRODUCTS HAS THE AUTHORITY TO MODIFY OR AMEND THE WARRANTIES SET FORTH ABOVE WITHOUT EXPRESS WRITTEN AUTHORIZATION FROM SELLER.
10. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY, INCLUDING, WITHOUT LIMITATION, LABOR OR EQUIPMENT REQUIRED TO REMOVE AND/OR REINSTALL ORIGINAL OR REPLACEMENT PARTS, LOSS OF TIME, PROFITS OR REVENUES, LACK OR LOSS OF PRODUCTIVITY, LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF SUBSTITUTE EQUIPMENT, FACILITIES, SYSTEMS OR SERVICES OR DOWNTIME COSTS, DAMAGE TO OR LOSS OF PROPERTY OR EQUIPMENT, ANY INCONVENIENCE, COST OR DAMAGE ARISING OUT OF ANY DELAY IN PERFORMING, FAILURE TO PERFORM OR OTHER BREACH OF THE WARRANTY SET FORTH IN SECTION 9 OR OBLIGATIONS UNDER SUCH WARRANTY, OR CLAIMS OF THIRD PARTIES AGAINST BUYER ARISING OUT OF OR IN CONNECTION WITH THE SALE, USE OF, INABILITY TO USE, OR THE REPAIR OR REPLACEMENT OF THE PRODUCTS SOLD PURSUANT TO THESE TERMS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL SELLER’S TOTAL LIABILITY (INCLUDING, WITHOUT LIMITATION, LIABILITY FOR PERSONAL INJURY, PAIN AND SUFFERING OR EMOTIONAL DISTRESS) IN RESPECT OF ANY AND ALL CLAIMS OF ANY KIND, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH, OR RESULTING FROM, SELLER'S SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT OR FURNISHING OF ANY PRODUCTS (INCLUDING PERFORMANCE OR BREACH OF THE WARRANTY SET FORTH IN SECTION 9 OF THESE TERMS) OR BUYER’S USE OR RESALE THEREOF, EXCEED THE PURCHASE PRICE ALLOCABLE TO THE PRODUCT(S) THAT GAVE RISE TO THE CLAIM.
11. General Indemnity. Buyer agrees to indemnify, defend and hold Seller and its affiliates, employees, representatives and agents harmless from and against any and all claims, demands, suits, actions and proceedings and any and all losses, damages, costs and expenses (including attorneys’ fees) arising therefrom to the extent arising out of or related to (i) Buyer’s breach of these Terms, (ii) Buyer’s or its employees’, agents’ or representatives’ negligence or willful misconduct, or (iii) any personal injury, property damage or death caused by an act or omission of Buyer or its employees, agents or representatives.
12. Intellectual Property Rights. Seller shall retain all right, title and interest in and to all patents, copyrights, trade secrets, trade names, trademarks, service marks, designs and other intellectual property rights embedded in or relating to the Products (collectively, “Seller Intellectual Property”). Buyer hereby acknowledges and agrees that all right, title and interest in and to the Seller Intellectual Property shall remain exclusively with Seller, subject only to the rights Seller explicitly grants Buyer herein. To the extent Seller develops any enhancements, modifications, alterations or improvements to any of the Products based upon ideas or suggestions communicated by Buyer to Seller, Buyer hereby irrevocably assigns its rights to such ideas or suggestions to Seller, together with all intellectual property rights relating thereto. Buyer agrees to indemnify, defend and hold Seller harmless from and against any and all damages, costs and expenses (including attorneys’ fees) related to any claim arising from or related to (a) the design, distribution, manufacture, marketing, sale, or use of a Product or (b) a claim that a Product furnished to Buyer by Seller, or the use thereof, infringes any foreign or domestic patent, in each case to the extent that such claim arises from or is related to (i) any modifications by Buyer to such Product or any part(s) thereof, or (ii) the combination of such Product or any part(s) thereof with any other parts, equipment, products or goods. Buyer agrees to undertake at its own expense the defense of any suit against Seller brought as a result of any such claim.
13. Force Majeure. Seller shall not be responsible for any delay or failure in performance of any part of these Terms or delivery of the Products to the extent such delay or failure is caused by an event beyond the reasonable control of Seller, including, without limitation, governmental action, fire, explosion, acts of God, flood, war, riot, accident, blockades, insurrections, riots, epidemics, pandemics, earthquakes, hurricanes, tornadoes, floods, abnormal snow or hail storms, labor trouble, shortages of labor or materials, increases in material costs, transportation difficulty, acts of the public enemy, or the existence of any circumstance making performance commercially impractical (each such event, a “Force Majeure Event”).
14. Compliance With Laws. Buyer shall comply with all laws and regulations applicable to the Products and Buyer’s use thereof, including, but not limited to, all applicable import and export laws and regulations. All sales shall be subject to the export and munitions control laws of the United States. Buyer shall not make any dispositions, re-export or diversion of United States origin products purchased from Seller except as said laws may expressly permit. If the ultimate destination of the Products is outside of the United States, Buyer shall designate such country on its order. In the event that Buyer purchases Products for export without so notifying Seller, Seller reserves the right to cancel the order at no penalty and with no liability for breach in the event that Seller objects to the ultimate destination of the Products, and Buyer will have sole liability and shall defend, indemnify and release Seller for any loss or damage (including, without limitation, claims of governmental authorities) arising from the export from the United States or import into another country of such Products, including, without limitation, those related to packaging, labeling, marking, warranty, contents, use, or documentation of the Products. Buyer has sole responsibility for obtaining any required export licenses. Buyer will not take, and will not solicit Seller to take, any action that would violate any anti-boycott or any export or import laws of the United States or other governmental authorities and shall defend, indemnify, and reimburse Seller for any loss or damage arising out of or related to such actions.
15. No Waiver. Seller’s waiver of any breach of any provision contained in these Terms will not waive any other breach by Buyer. Seller’s delay or failure to enforce its rights under these Terms shall not be deemed a waiver of such rights.
16. Governing Law and Jurisdiction. These Terms and any dispute arising out of or related to these Terms or any Products shall be governed by the laws of the State of North Carolina, without regard to its conflicts of law rules. Buyer and Seller agree that these Terms are entered into in the State of North Carolina. BUYER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN MECKLENBURG COUNTY, NORTH CAROLINA, OR ANY FEDERAL COURT LOCATED IN THE STATE OF NORTH CAROLINA, WITH REGARD TO ANY CLAIMS THAT MAY BE BROUGHT IN COURT CONSISTENT WITH SECTION 17 BELOW. BUYER AGREES THAT ALL SERVICE OF PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO BUYER AT THE ADDRESS SET FORTH ON BUYER'S ORDER. EXCEPT AS SET FORTH IN SECTION 17 BELOW, NOTHING IN THESE TERMS AFFECTS THE RIGHT OF SELLER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST BUYER IN THE COURTS OF ANY OTHER JURISDICTION THAT HAS JURISDICTION OVER BUYER. TO THE EXTENT PERMITTED BY LAW, BUYER HEREBY WAIVES TRIAL BY JURY AND WAIVES ANY OBJECTION THAT BUYER MAY HAVE BASED ON LACK OF JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THESE TERMS.
17. Arbitration; Class Action Waiver. ANY DISPUTE RELATING IN ANY WAY TO THESE TERMS, THE PRODUCTS, OR THE RELATIONSHIP BETWEEN THE PARTIES SHALL BE SUBMITTED TO CONFIDENTIAL ARBITRATION, AND BUYER AGREES TO SUBMIT TO THE JURISDICTION AND PROCEEDINGS THEREOF. ARBITRATION MEANS THAT A SINGLE ARBITRATOR WILL DECIDE ANY CLAIM, AND BUYER WILL NOT HAVE THE RIGHT TO SUE IN COURT OR TO HAVE A JUDGE OR JURY DECIDE ANY CLAIM. BUYER’S RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY ALSO BE LIMITED IN ARBITRATION. It is further agreed that any dispute over the scope of this arbitration provision and any dispute as to whether a claim is arbitral shall be submitted to the arbitrator for decision. However, to the extent Buyer has in any manner violated or threatened to violate Seller’s intellectual property rights or the intellectual property rights of Seller’s affiliates, partners or licensors or Seller otherwise has a cause of action in equity, Seller may seek injunctive or other appropriate relief in any court of competent jurisdiction and Buyer consents to jurisdiction and venue in any such court for such purposes. Arbitration under these Terms shall be conducted under the Consumer Arbitration Rules then prevailing with the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to this Terms, whether through class arbitration proceedings or otherwise. Buyer agrees that any arbitration or proceeding shall be limited to the dispute between Seller and Buyer individually, and that (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. BUYER AGREES THAT BUYER MAY BRING CLAIMS AGAINST SELLER ONLY IN BUYER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
18. Assignment. These Terms are binding upon, and shall inure to the benefit of, Buyer, Seller and their successors and permitted assigns. Buyer may not assign all or any portion of its rights or obligations hereunder without the prior written consent of Seller. Seller may assign, delegate or subcontract an order or any of its obligations under these Terms, in whole or in part, without Buyer’s consent.
19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall 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 shall have authority to contract for or bind the other party in any manner whatsoever.
20. Entire Agreement; Amendments. The entire agreement of Seller and Buyer is expressed exclusively in the terms, covenants and conditions set forth in these Terms and Seller’s acceptance or acknowledgement of Buyer’s order. No agent, representative or employee of Seller has authority to agree, represent or warrant otherwise, except Seller’s officers, and then only in writing. These Terms supersede all other written or oral agreements between the parties. These Terms and any associated order acknowledgement may be amended or modified only by an express written agreement signed by Seller.
21. Severability. Any part of these Terms held to be invalid or unenforceable by a tribunal of competent jurisdiction shall be deemed ineffective to the extent thereof without affecting the validity or enforceability of any other part of these Terms.
22. Survival. Provisions of these Terms that by their nature should apply beyond any expiration or termination of these Terms shall remain in force after any termination or expiration of these Terms.
Effective August 25th, 2020