1. Definitions. (a) “Contract” means the Order, and these Terms and Conditions.; (b) “Snorkel” means Snorkel International, LLC, a Nevada limited liability company; (c) “Goods” means the products purchased by Purchaser as described in the Order; (d) “Order” means the written quotation located on the front side hereof for the purchase of the Goods placed by Purchaser; (e) “Purchaser” means the person, firm or company placing the Order; (f) “Purchase Price” means the total price for the purchase of the Goods as specified in the Order; and (g) “Terms and Conditions” means the General Terms and Conditions of Sale binding on the parties, and are set forth in the following numbered paragraphs.
2. Acceptance. Snorkel’s acceptance of the Order is expressly made conditional on Purchaser’s acceptance of the Terms and Conditions, which are in lieu of any additional or different terms contained in any other document or communication pertaining to Purchaser’s order of the Goods. Purchaser’s assent to the Terms and Conditions herein shall be conclusively presumed from Purchaser’s signature of the Order, acceptance of all or any part of the Goods, or from payment by Purchaser for all or any part of the Goods, whichever occurs first. None of these Terms and Conditions may be added to, modified, superseded, or otherwise altered, nor shall any other terms or conditions proposed by Purchaser, which is different from or in addition to the Terms and Conditions, shall bind Snorkel, and shall be of no effect, unless expressly agreed to a signed writing by Snorkel. Failure of Snorkel to object to any other terms or conditions which may be contained in any document or form of Purchaser shall not be construed as a waiver of these Terms and Conditions, nor as an acceptance of any such terms and conditions.
3. Purchase Price/Payment. Purchaser shall be responsible for the Purchase Price along with freight, insurance, impounds, tariffs, duties, and sales, use, excise, or any other taxes or assessments levied by a federal, state, municipal, or other governmental authority. Purchaser shall pay Snorkel the Purchase Price, in United States currency, in accordance with the terms described in the Order. Except as otherwise provided in the Order, full payment of the Purchase Price, along with any applicable taxes, impounds, tariffs, or duties, shall be paid to Snorkel, by wire transfer or in immediately available funds, within ten (10) calendar days following the date of the Order.
4. Inspection/Acceptance of Goods. Purchaser shall have the responsibility for inspecting the Goods for apparent loss or damage immediately upon arrival at the delivery point. Purchaser shall be deemed to have accepted the Goods if, within three (3) business days following delivery of the Goods, Purchaser fails to notify Snorkel, in writing, of any non-conformity with the specifications of the Order.
5. Delivery of Goods.
5.1 Shipment Terms. Except as otherwise provided in the Order, shipments of Goods shall be at Purchaser’s expense and F.O.B. Snorkel’s manufacturing or warehouse facilities. Title and risk of loss or damage shall pass from Snorkel to Purchaser upon Snorkel’s delivery of Goods to the carrier specified by Snorkel. Snorkel shall not be responsible for any expense related to the loading of Goods onto carrier’s conveyance or delay of shipment thereafter.
5.2 Portion of Goods Available. If only a portion of Goods is available for shipment, Snorkel shall notify Purchaser and ship the available Goods, unless otherwise agreed to by the Parties. Notwithstanding anything to the contrary herein, Snorkel’s shipment of the available Goods shall not constitute a breach, default, or otherwise entitle Purchaser to claim any remedy against Snorkel, provided that Snorkel delivers the remainder of the Goods to Purchaser within a reasonable time thereafter.
5.3 Cost and Expenses. Snorkel shall not be responsible for any cost or expense associated with shipment of Goods, which shall include but is not limited to: transportation charges, freight, duties, taxes, or any other charge associated with early shipment or the return of over shipments by Purchaser.
6. Warranty. Snorkel warrants that new Goods manufactured by it and delivered hereunder will be free of defects in material and workmanship for the periods of time specified in the applicable warranties of the Snorkel for such Goods, which are incorporated herein by reference. Purchaser shall be obligated to promptly report any failure to conform to the applicable warranty to Snorkel in writing within the applicable warranty period, whereupon Snorkel shall, at its option, correct such nonconformity by suitable repair to such Goods or furnish a replacement part F.O.B. point of shipment, provided Purchaser has stored, installed, maintained and operated such Goods in accordance with good industry practices and has complied with specific recommendations of Snorkel. Snorkel shall not be liable for any repairs, replacements, modifications, or adjustments to the Goods or any costs of labor performed by Purchaser or others without Snorkel’s prior written approval. The effects of corrosion, erosion and normal wear and tear are specifically excluded from the Snorkel’s warranty. Accessories or equipment furnished by Snorkel, but manufactured by others, including, but not limited to, engines, tires, batteries, engine electrical equipment, hydraulic transmissions, and carriers, shall carry whatever warranty the manufacturers have conveyed to Snorkel and which can be passed on to Purchaser. SNORKEL MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED. INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE, AND SNORKEL EXPRESSLY DISCLAIMS THE SAME, UNLESS SPECIFICALLY SET FORTH HEREIN. Correction by Snorkel of nonconformities, whether patent or latent, in the manner and for the period of time provided above, shall constitute fulfillment of all liabilities of Snorkel for such nonconformities, whether based on contract, warranty, negligence, indemnity, strict liability or otherwise with respect to or arising out of such Goods.
7. Compliance with Laws. Each party shall, at all times, comply with all laws, rules and regulations applicable to their obligations under this Order. Each party shall furnish any information required to enable the other to comply with such laws, rules and regulations, or otherwise confirm compliance with such laws, rules and regulations, or with the provisions of this Order.
8. Default. If Purchaser fails to perform or breaches any non-monetary performance obligation, Snorkel may terminate, in part or whole, any part of this Order, unless Purchaser resolves the breach within five (5) calendar days after receipt of Snorkel’s notification of Purchaser’s breach. In the event Purchaser fails to pay any amount as and when stated herein, the balance of the Purchase Price shall immediately become due and owing and shall accrue interest thereon and the rate of eighteen percent (18%) per annum. In the event that Snorkel terminates this Order in whole or in part as provided herein, Purchaser shall reimburse Snorkel upon demand for all actual damages suffered as result of such breach, including, but not limited to, attorney’s fees and costs. The rights and remedies granted to Snorkel pursuant to this Order are in addition to, and shall not limit or affect, any other rights or remedies available at law or in equity.
9. Assignment. Purchaser may not assign this Order without the express written consent of Snorkel, provided, however, that Snorkel may assign this Order to its successors, as well as to any entity or corporation now or hereafter owned or affiliated with Snorkel.
10. Indemnity. To the maximum extent allowed by law, Purchaser shall defend, hold harmless, and indemnify Snorkel, its officer, directors, employees and agents, affiliates and subsidiaries, against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that Snorkel may incur or be obligated to pay as a result of (i) Purchaser’s acts or omissions, use, ownership, maintenance, transfer, transportation or disposal of the Goods, or anyone for whom Purchaser is responsible; (ii) if manufactured to Purchaser’s specifications, any infringement or alleged infringement of the industrial and intellectual property rights of others arising from Purchaser’s plans, specifications (including Purchaser’s trademarks and brand names) or production of the Goods ordered by Purchaser; or (iii) Purchaser’s violation or alleged violation of any federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing product safety and labor practices.
11. Governing Law. This Contract shall be governed by the laws of the state of Nevada and the parties hereto acknowledge and submit to the exclusive jurisdiction of the courts located in Clark County, Nevada.
12. Insurance. Purchaser shall maintain, at its expense, a comprehensive general liability insurance policy covering claims of bodily injury, including dealing with property damage that may arise out of use of the Goods or acts or omission of Purchaser under this Order. Such policy or policies shall provide a coverage minimum of $2,000,000
USD per occurrence. Upon written request by Snorkel, Purchaser shall promptly supply Snorkel with certificates of insurance of such policies naming Snorkel as an additional insured.
13. Intellectual Property. The Snorkel name and logo, and all related product and service names, design marks and slogans are the trademarks of Snorkel. All intellectual property rights are expressly reserved herein, and Purchaser shall not in any manner whatsoever infringe on any copyright, trademark, service mark, trade secrets, logo, patent, or other intellectual property rights of Snorkel without the prior written consent of Snorkel.
14. Limitations of Liability. THE REMEDIES OF PURCHASER SET FORTH HEREIN ARE EXCLUSIVE, AND THE TOTAL LIABILITY OF SNORKEL WITH RESPECT TO THIS CONTRACT OR THE GOODS FURNISHED HEREUNDER, WHETHER BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS UPON WHICH SUCH LIABILITY IS BASED. SNORKEL SHALL IN NO EVENT BE LIABLE TO PURCHASER, ANY SUCCESSORS IN INTEREST OR ANY BENEFICIARY OR ASSIGNEE OF THIS CONTRACT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS CONTRACT OR ANY BREACH THEREOF, OR ANY DEFECT IN, OR FAILURE OF, OR MALFUNCTION OF THE GOODS HEREUNDER, WHETHER BASED UPON LOSS OF USE, LOST PROFITS OR REVENUE, INTEREST, LOST GOODWILL, WORK STOPPAGE, IMPAIRMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION, INCREASED EXPENSES OF OPERATION, COST OF PURCHASE OF REPLACEMENT POWER OR CLAIMS OF PURCHASER OR CUSTOMERS OF PURCHASER FOR SERVICE INTERRUPTION, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE.
15. Miscellaneous. Any waiver, or purported or implied waiver, by Snorkel of the Contract shall not be deemed to be a waiver unless it is in a writing signed by an authorized officer of Snorkel. Any such waiver shall not prejudice the rights of Snorkel in respect of any breach of Purchaser which is not specifically set forth in such waiver. The invalidity, illegality or unenforceability of any provision of the Contract shall not affect the validity, legality, or enforceability of any other provision of the Contract, which shall remain in full force and effect. The Contract contains the entire understanding between Snorkel and Purchaser and supersedes all prior understandings and agreements in respect of the subject matter stated herein. The Contract may not be modified or amended unless agreed to in a writing signed by the parties. Snorkel shall not liable for any failure or delay on its part in performing its obligations under the Contract if such failure or delay is due to “Force Majeure” conditions in whole or in part, including, but not limited to, strikes, governmental restrictions and controls, wars, riots, fire, floods, earthquakes, and other acts of God. The Contract shall not create and is not intended to create any relationship between the parties other than supplier and purchaser. Any notice required or permitted to be given hereunder shall be in writing and delivered to the addresses set forth in the Order.
