TERMS, CONDITIONS & LIMITED WARRANTY FOR THE SALE OF GOODS
(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by LiteZilla LLC (“Seller” or “LiteZilla”) to the buyer named on the reverse side of these Terms or in the accompanying Sales Confirmation (“Buyer” or “you”).
(b) The accompanying quotation, web purchase email, purchase confirmation, proposal and/or invoice (the “Sales Confirmation” and these Terms (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. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Notwithstanding anything herein to the contrary, if a written contract negotiated and signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
- Shipments; Delivery; Title and Risk of Loss.
(a) We will arrange for shipment of the Goods to you. Please check the Sales Confirmation for specific delivery options. Delivery shall be made FOB Origin [4997B North 33rd St, Milwaukee, WI 53209]. You will pay all shipping and handling charges specified during the ordering process.
(b) Title and risk of loss pass to you upon our transfer of the Goods to the carrier transporting the Goods. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments or damage incurred during shipment.
- Returns and Refunds. LiteZilla Goods are non-refundable, notwithstanding Section 5 (Inspection and Rejection of Nonconforming Goods) below. You are permitted to amend or alter your Sales Confirmation within fourteen (14) days following your acceptance of the Sales Confirmation, which occurs on the earliest of any of the following: acceptance of the proposal, submission of the purchase order, or payment for the Goods Any proposed amendment or alteration of the Sales Confirmation must be submitted in writing via email to [email protected].
- 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 Goods.
(a) Buyer shall inspect the Goods within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) Goods shipped is different than identified in Buyer’s purchase order; or (ii) Goods’ label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price (as defined below) for such Nonconforming Goods, 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 Goods to Seller’s facility located in Milwaukee, WI. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
(a) Buyer shall purchase the Goods from Seller at the price(s) (the “Price(s)”) set forth in the accompanying Sales Confirmation.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental
Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
- Payment Terms.
(a) Buyer shall pay the Price in accordance with the noted and agreed upon payment terms in the Sales Confirmation. Buyer shall make all payments hereunder in accordance with the Sales Confirmation.
(b) 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. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
- Limited Warranty.
(a) LITEZILLA PROVIDES THE BUYER WITH THE FOLLOWING WARRANTIES ON THE APPLICABLE GOODS/COMPONENTS DURING THE APPLICABLE WARRANTY PERIOD DESCRIBED BELOW.
(i) LiteZilla Light Boards (Standard and Custom) shall be free from material defects in workmanship and materials (other than electrical components) for a period of 10 years.
(ii) LiteZilla Mini, Soar & Catch Scarf Cannon, Ultimate Air Launcher, Whirly Wall, Sensory Gears, Kidnetics Course Constructor, Hybrid Magnet Wall, Kidworx, Clonebox, and any other Goods not specifically named here, but produced and sold by LiteZilla to Buyer shall be free from material defects in workmanship and materials (other than electrical components) for a period of 2 years.
(iii) All electrical components, including but not limited to, lights, light panels, power supplies, power transformers, power drivers, power switches and buttons, LED receivers, LED remotes, cables, fans and blowers will be free from material defects for a period of 2 years.
(b) ANY SERVICES PERFORMED BY LITEZILLA (such as installation support or on-site staffing) SHALL BE PROVIDED BY LITEZILLA IN A TIMELY AND PROFESSIONAL MANNER.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, ALL GOODS AND SERVICES ARE PROVIDED “AS IS” AND LITEZILLA DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY LITEZILLA OR ANY OF ITS SUPPLIERS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
(d) LITEZILLA’S RESPONSIBILITY FOR ANY GOODS OR COMPONENTS THAT DO NOT SATISFY THE EXPRESS WARRANTIES SET FORTH IN SECTION 8(a) ABOVE, SHALL BE LIMITED TO, IN LITEZILLA’S SOLE DISCRETION, REPAIR, REPLACEMENT OR REFUND FOR THE GOODS OR COMPONENTS AT ISSUE. IN ORDER TO RECEIVE ANY SUCH REMEDY, BUYER MUST REGULARLY CLEAN THE GOODS AND PROVIDE LITEZILLA WITH NOTICE OF THE DEFECTIVE GOODS OR COMPONENTS WITHIN THE APPLICABLE WARRANTY PERIOD. ANY MODIFICATION TO THE GOODS OR COMPONENTS, IMPROPER INSTALLATION OF THE GOODS, UNAUTHORIZED REPAIR, OR COMBINATION OF THE GOODS WITH ANY OTHER PRODUCTS OR MATERIALS SHALL VOID ALL WARRANTIES.
9. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, REGARDLESS OF: (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) THE CAUSE OF ACTION, (iii) WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iv) AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE GOODS OR SERVICES PROVIDED BY LITEZILLA, REGARDLESS OF THE CAUSE OF ACTION, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO SELLER FOR THE GOODS AT ISSUE.
(a) Buyer covenants and agrees that it shall defend, indemnify and hold Seller and all of its officers, agents and employees (each a, “Seller Indemnitee”) harmless for any claim, loss, damage, cost, charge, expense, lien, settlement or judgment, arising out of or in connection with Buyer’s performance of the Agreement, use of the Goods, installation of the Goods in any manner other than as set forth in Seller’s installation instructions, or Buyer’s negligent or willful acts or omissions. Buyer shall not be liable under this section for damage to persons or property directly caused or resulting from the sole negligence of Seller, or any of its officers, agents or employees.
(b) In the event any suit or other proceedings for any claim, loss, damage, cost, charge or expense covered by Buyer’s foregoing indemnity should be brought against any Seller Indemnitee, Buyer hereby covenants and agrees to assume the defense thereof and defend the same at Buyer’s own expense and to pay any and all costs, charges, attorney’s fees, and other expenses as they accrue, and any and all judgments that may be incurred by or obtained against any Seller Indemnitee in such suits or other proceedings. Buyer shall not agree to any settlement or judgment without Seller’s consent, unless such settlement or judgment requires only the payment of money from Buyer or its insurer. In the event of any judgment or other lien being placed upon the property of Seller in such suits or other proceedings, Buyer shall at once cause the same to be dissolved and discharged by giving bond or otherwise.
- Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes anti-dumping or countervailing duties or any other penalties on Goods.
- Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Seller may also terminate this Agreement for any reason by providing Buyer with thirty (30) days’ written notice of its desire to terminate the Agreement so long as such termination is in advance of delivery of the Goods.
- Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Buyer agrees to not disassemble, reverse engineer or otherwise use the Goods to develop competing goods.
- Waiver. 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.
15. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Assignment. 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.
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.
- 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.
- Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin.
- Dispute Resolution.
(a) YOU AND LITEZILLA ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 20. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
(c) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR LITEZILLA WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) letter mailed to the shipping address you provide. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: (i) by e-mail to [email protected] or (ii) by personal delivery, overnight courier or registered or certified mail to: LiteZilla LLC, 4997B North 33rd St, Milwaukee, WI 53209. We may update the email address or physical address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
- Severability. 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.
- Survival. 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: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
Questions: [email protected]