Future Supply Commercial Terms and Conditions
SeeMyCart, Corp dba Future Supply. Commercial Purchaser End-User Terms and Conditions
This Commercial Purchaser End-User Agreement (“Agreement” or “Terms and Conditions”) governs the commercial retail purchase and use of products (“Product”) sold in the United States by Future Supply (“Future Supply”), including its affiliates or subsidiaries and purchased by a commercial purchaser (“Company”) for its own commercial use. By purchasing and using the Product(s), Company agrees to be bound by the terms of this Agreement. If Company does not agree with the terms and conditions of this Agreement, do not use the Product and return the Product(s) to Company’s place of purchase, subject to its, or Future Supply’s, return policy, as applicable.
1. COMPANY ACKNOWLEDGEMENT. Company acknowledges and agrees with the terms and conditions of these Terms and Conditions by the placement of an order to purchase, or through Company’s actual purchase of, Product(s) from Future Supply. All goods are supplied on these terms and conditions and no person in the employment of or as agent for, Future Supply has any authority to supply goods on any other terms and conditions or to vary these terms and conditions whatsoever. Previous dealings, or other terms accompanying a purchase order submitted by Company, shall not vary, modify, or negate these terms and conditions in any respect.
2. ORDERS AND PAYMENT. Orders for Product(s) are not binding on Future Supply until accepted by Future Supply. Once an order is accepted by Future Supply, it is non-cancelable and nonreturnable by Company. Company agrees to pay the total purchase price of the Product(s) plus shipping and other charges related to your purchase (including, but not limited to, taxes or other governmental charges.) Terms of payment are within Future Supply’s sole discretion and, unless otherwise agreed to in writing by Future Supply, payment must be received by Future Supply prior to Future Supply’s acceptance of an order. Each accepted order will be viewed as a single agreement, independent of any other orders. Company’s order is subject to cancellation by Future Supply, in Future Supply’s sole discretion. Future Supply is not responsible for pricing, typographical or other errors in any offer by Future Supply and reserves the right to cancel or adjust any orders arising from such error. If Future Supply issues an invoice to Company with a payment due date after its acceptance of an order, instead of requiring up-front payment, (an “Invoice”), all amounts due under the Invoice are due and payable within the time period noted on the Invoice, measured from the date of the Invoice. Future Supply reserves the right to charge a late fee of 1.5% per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is lower. Late fees will be recalculated monthly based on the then current outstanding balance. Additionally, without waiving any rights or remedies to which it may be entitled, Future Supply will have the right to suspend, terminate or refuse additional unfulfilled orders for Products from Company until Future Supply receives all overdue amounts from Company. Future Supply will have no liability to Company for any such suspension, termination or refusal of additional orders when Company is in arrears on previous orders.
3. TITLE TO AND DELIVERY OF GOODS. Future Supply warrants that it has good title to all Products it sells. Title to the Product(s) shall remain the sole and absolute property of Future Supply as legal and equitable owner and Company shall hold such goods as bailee only, until such time as Company has paid the full price for the Product(s). Company shall be liable to Future Supply for any loss or damage to the Product(s) during such bailment. Upon full payment for the Product(s), title thereto shall pass to Company. Title to the software (if any) contained in the Product(s) will remain with the applicable licensor(s), and Company’s rights therein are contained in the license agreement between such licensor(s) and Company.
4. SHIPPING CHARGES AND TAXES. Shipping, handling, taxes, and governmental fees are additional costs to the purchase price of the Product(s), unless otherwise expressly agreed to in writing by Future Supply at the time of sale. Company is responsible for all such charges. Company may be excused from rendering payment for sales or use taxes to Future Supply if Company provides Future Supply with a valid and correct tax exemption certificate applicable to Company’s purchase of Product(s) and the Product ship location. If Company is required by law to make a withholding or deduction from payment, Company will make payments to Future Supply net of the required withholding or deduction. Company will supply to Future Supply satisfactory evidence (e.g. official withholding tax receipts) that Company has accounted to the relevant authority for the sum withheld or deducted. Shipping and delivery dates are estimates only and are subject to change. Company must notify Future Supply within 21 days of the invoice date if any part of its order is missing, wrong, or damaged.
5. RISK OF LOSS. Risk of loss or damage during shipment pass from Future Supply to Company upon delivery to Company’s place of business (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to the Products will pass to Company as set forth above in Section 3.
6. PRICING. Future Supply reserves the right to make adjustments to its pricing, Product(s), and service offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, component part price changes, supplier price changes, and errors in advertisements. All orders are subject to Product availability. Therefore, Future Supply cannot guarantee that it will be able to fulfill Company’s orders or provide the Products within anticipated delivery dates. Future Supply may invoice parts of an order separately or together in one invoice. All invoices shall be deemed accurate unless Company advises Future Supply in writing of a material error within 10 days following receipt. If Company advises Future Supply of a material error, (i) any amounts corrected by Future Supply in writing shall be paid within 14 days of correction and (ii) all other amounts shall be paid by Company by the due date. If Company withholds payment upon an assertion that an invoiced amount is erroneous, and Future Supply concludes that such amount is accurate, the parties shall meet and confer to resolve the dispute. Any dispute not resolved pursuant to the meet and confer process shall be resolved pursuant to the dispute resolution process. If it is determined pursuant to the meet and confer process or dispute resolution process that Company wrongfully or mistakenly withhold the disputed payment amount, Company shall promptly pay such amount to Future Supply, with interest accruing at a rate of 1.0% per month (prorated for any partial month) from the original due date of such amount. Any assignment of Company’s payment obligations to a third-party financing company must be approved in advance in writing by Future Supply, and Company will not be excused from its obligations under this Agreement.
7. CREDITS. Any credit issued by Future Supply to Company for any reason must be used within one (1) year from the date that the credit was issued and may only be used for future purchases of Product(s). Any credit or portion thereof not used within the one (1) year period will automatically expire.
8. NOT FOR RESALE. Company agrees to comply with all applicable laws and regulations of the various states and of the United States. Company agrees and represents that Company is buying for Company’s own internal use only, and not for resale. Future Supply has separate terms and conditions governing resale of Product by third parties.
9. EXPORT SALES AND RESTRICTIONS ON USE. If this transaction involves an export of Product(s) (including, but not limited to, commodities, software or technology) that is subject to the Export Administration Regulations (“EAR”), then such items will be exported from the United States by Future Supply in accordance with EAR and Company agrees that they shall pay all expenses associated with export, including, but not limited to, all expenses necessary to be compliant with EAR standards during the export process. Company agrees that Company will not divert, use, export, or re-export such items contrary to United States law. Company expressly acknowledges and agrees that Company will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time, but currently includes Cuba, Iran, Sudan, and Syria. Company also expressly acknowledges and agrees that it will not export, reexport, or provide such items to entities and persons that are ineligible under United States law to receive such items, including, but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturer’s warranties for exported Product(s) may vary or may be null and void for Product(s) exported outside the United States. Company agrees that the Product(s) purchased will not be used for activities related to weapons of mass destruction, including activities related to the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons, or chemical or biological weapons. Company further agrees that Company will not sell, lease, or otherwise transfer Product(s) to end-users engaged in these activities.
10. HIGH RISK DISCLAIMER. Future Supply Products have not been tested or certified for use in any high-risk applications, including the operation of aircraft, nuclear facilities, vehicles, air traffic control, weapons systems or any other application where the failure or malfunction of any Future Supply Product can lead to death, dismemberment, personal injury, property damage or environmental damage. Future Supply makes no assurances that their Products are suitable for such high-risk applications and Company shall defend and indemnify Future Supply against any claims by third party resulting from Company’s use of Future Supply Products in high-risk applications. Company is solely responsible for the design and implementation of configurations, networks and systems pertaining to Company’s applications and environments. Additionally, Future Supply shall have no obligation under these Terms and Conditions for any claim of infringement to the extent that it results from: (i) modifications to the Products made other than by Future Supply; (ii) combination or use of the Product with equipment, products, systems, software, materials or processes not furnished by Future Supply, if absent such combination, no infringement would exist; (iii) the use or incorporation of any materials supplied to Future Supply by Company or its agents, contractors or third party suppliers; or (iv) Company’s failure to use updated or modified Products to avoid a claim of infringement or misappropriation.
11. RETURN OR EXCHANGE OF GOODS. Returns and exchanges are governed by the policies of the retailer or reseller where Company purchased the Product(s), unless Company’s purchase of the Product(s) was directly from Future Supply. If Company purchased the Product(s) directly from Future Supply, then Company will be subject to Future Supply’s return policy, which can be found on Future Supply’s website http://simplynuc.com/legal/ and Company agrees to those terms. Future Supply reserves the right to amend its return policy in its sole and absolute discretion at any time. Note that if Company fails to follow the return or exchange instructions and policies provided by Future Supply, Future Supply is not responsible for Product that is lost, damaged, modified, or otherwise processed for disposal or resale. At Future Supply’s sole discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing.
12. CHANGED OR DISCONTINUED PRODUCTS. Future Supply is a continually evolving company which may involve frequent updates and revisions to its Product line. Future Supply may update or discontinue a Product offering at any time without prior notice to Company. A change in Product may occur after Company places an order but before Future Supply ships the Product out to Company. As a result, Product that the Company receives may display minor differences from original Product orders.
13. SOFTWARE. All software, if any, provided in conjunction with the sale of any Product(s) is subject to the separate software license agreement accompanying or made available to Company in connection with the software. A portion of the software may contain or consist of open source software, which Company may use under the terms and conditions of the specific license under which the open source software is distributed. Company agrees that Company will be bound by any and all such license agreements. Title to the software remains with the applicable licensor(s).
14. REFUNDS AND RETURNS. Our refund and return policies are set forth at http://simplynuc.com/legal/. The refund and return policies are incorporated herein as if set forth in full.
15. SERVICES, SUPPORT AND WARRANTIES. Our services, support, and warranty policies are set forth at http://simplynuc.com/legal. The services, support and warranty policies are incorporated herein as if set forth in full.
16. BRANDING OR MARKING ON Future Supply PRODUCT. If any special branding or mark of Products is requested by Company (other than a Future Supply brand or mark), Future Supply makes no representations regarding the right or ability to include any brand or mark on the Products. Company represents and warrants that any inclusion of a brand or mark requested by Company will not violate any intellectual property right of any other person and that Company has legal authority to place such brand or mark on the Products. Company further agrees to indemnify Future Supply from all claims, damages, and expenses for any intellectual property infringement claims (including payment for reasonable attorneys’ fees and costs) arising out of inclusion of any non-Future Supply brand or mark requested by Company and placed on the Products.
17. LIMITATION OF LIABILITY. THE PRODUCT(S) IS PROVIDED TO COMPANY ON AN “AS IS” BASIS, WITHOUT IMPLIED WARRANTIES OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE (EXCEPT AS EXPRESSLY SET FORTH HEREIN). Future Supply AND ITS AFFILIATES, EMPLOYEES, AND AGENTS ARE NOT LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. MOREOVER, Future Supply IS NOT LIABLE BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING, BUT NOT LIMITED TO, ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Future Supply AND ITS AFFILIATES’, EMPLOYEES’, AND AGENTS’ TOTAL AGGREGATE LIABILITY TO COMPANY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT OR COMPANY’S PURCHASE OF THE PRODUCT SHALL NOT EXCEED THE AMOUNT COMPANY PAID FOR THE PRODUCT.
18. INDEMNIFICATION. Company shall indemnify Future Supply against any third party claim or action resulting from Company’s failure to properly maintain the Product in use at Company, or if Company misuses or modifies any Future Supply Product and a lawsuit results due to such modification, or any combination of use of an Future Supply Product with any other third party product where such combination infringes or misappropriates any intellectual property right or trade secret of a third party, or any instance where Company is involved in fraud, misrepresentation, gross negligence, willful misconduct or breach of any provision of these Terms & Conditions or any other Agreement between the parties.
19. CONFIDENTIALITY. “Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential. Confidential Information may only be disclosed to the receiving party’s personnel, professional advisors, agents, and subcontractors (“Representatives”), on a “need-to-know” basis in connection with this Agreement. Representatives shall be bound to treat the Confidential Information under terms at least as restrictive as those herein, and the receiving party shall be liable for unauthorized disclosures by its Representatives. Each party will use at least the same degree of care as it employs with respect to its own Confidential Information, but not less than a commercially reasonable standard of care. The foregoing shall not apply to information that (i) is independently developed without use of the other party’s Confidential Information; (ii) has been obtained from a source which is not under a confidentiality obligation; or (iii) is or becomes publicly available without fault of the receiving party. If receiving party must disclose Confidential Information as required by law, it shall give reasonable prior notice to the disclosing party. These obligations shall continue for 3 years from the initial date of disclosure, except that obligations related to information about a party’s intellectual property shall never expire.
20. NO AGENCY RELATIONSHIP. No provision within these Terms & Conditions will be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between Company and Future Supply. Company and Future Supply are independent contractors to each other. Neither Future Supply nor Company will make any representations or warranties or assume any obligations on the other’s behalf. Neither Future Supply nor Company shall have the authority to claim to be a legal representative, agent, franchisee or employee of the other. Each party is responsible for their own employees and subcontractors.
21. FORCE MAJEURE. Neither party will be liable to the other for any failure to perform any of its obligations under these Terms and Conditions in the event that such performance is delayed or made impossible to fulfill by reasons beyond a party’s control such as acts of war, fire, flood, strike, riot or the intervention of a governmental authority. In such an event, the delaying party must provide the recipient party with written notice of Force Majeure. Accordingly, the delayed party’s performance may be, in the event of delay, excused for thirty (30) days. If the delay will take longer than thirty days, then the recipient party may terminate in whole or in part, the Order or any other request for Product between the parties, by giving written notice to the delaying party.
22. INTELLECTUAL PROPERTY RIGHTS. No transfer of ownership of any intellectual property will occur under this Agreement. Company grants Future Supply a non-exclusive, worldwide, royalty-free right and license to any intellectual property that is necessary for Future Supply and its designees to perform the ordered services. All right, title and interest in Future Supply’s intellectual property (including all copyrights, patents, trademarks, and trade secrets) embodied in the Product hardware belongs solely and exclusively to Future Supply, and Company has no rights whatsoever in the Product hardware except as expressly granted in these Terms and Conditions or under a separate agreement between Future Supply and Company. Company may not modify, remove, delete, augment, change or sell the Product in whole or in part. Future Supply also retains all intellectual property rights, title and interest in any ideas, concepts, techniques or know how associated with deliverables of the Product.
23. GOVERNING LAW AND VENUE. Company agrees that this Agreement, the purchase and use of the Product, or any claim, dispute, or controversy (whether in contract, tort, or otherwise, whether preexisting, present or future, and including statutory, consumer protection, common law, and equitable claims) arising from or relating to this Agreement, Company’s purchase or use of the Product, Future Supply’s advertising, or any related purchase shall be construed and interpreted in accordance with the laws of the state of WashingtonDelaware without giving effect to any choice of law provisions which may be applicable. Any dispute between the parties arising from, or related to this Agreement shall be resolved first by non-binding mediation conducted bywithin the Washington Mediation Association. state of Delaware by a mutually acceptable mediator with at least 15 years of experience. In the event the parties cannot agree on a mediator within 30 days, each party shall select a mediator, and such mediators shall appoint a third mediator with at least 15 years of experience who shall act as mediator with respect to such dispute. If any dispute is not resolved through mediation within 60 days of the appointment of a mediator therefor, each party shall retain all rights and remedies available under this Agreement or at law or in equity.
25. Customer Authorization for Provision of Services. Some warranties or service contracts for Third-Party Products may become void if Future Supply provides services for such products. Future Supply SHALL NOT BE RESPONSIBLE FOR ANY EFFECT THAT THE HARDWARE SERVICES MAY HAVE ON THOSE WARRANTIES OR SERVICE CONTRACTS. Company authorizes Future Supply to use or otherwise access any and all Third-Party Products Company provides as may be necessary to perform the Services or as requested by Company, including but not limited to copying, storing, and reinstalling a backup system or data.
26. Customer & System Data. In connection with Future Supply’s performance or Company’s use of the Services and Service-related Software, Future Supply may obtain, receive, and/or collect data or information, including system-specific data (collectively, the “Data”). Company grants Future Supply (i) a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely to provide the Services or Service-related Software; (ii) a license to aggregate and use the Data in an anonymous manner in support of Future Supply’s marketing and sales activities; and (iii) the right to copy and maintain the Data on Future Supply’s or its suppliers’ servers as necessary to provide the Services. Company represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which it is located.
27. MISCELLANEOUS. Company may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Future Supply. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement will be deemed waived, amended, or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The purchase of Future Supply Products does not create any relationship between Future Supply and Company other than that of purchaser and seller, and not that of employer/employee, partnership, joint venture, or similar relationship. If any term or condition herein is found by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof, or the whole of these Terms and Conditions. Notices provided under these Terms and Conditions will be given in writing. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN 2 YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
