Terms & Conditions.

ASSIGNMENT AND TERMS AND CONDITIONS OF PROCUREMENT

  1. Terms and Conditions of Procurement; Assignment of Procurement Items; Indemnity. The services provided and sold by Shopthe48 to you are referred to as the “Procurement Services,” and items of tangible property that are provided by a third party to Shopthe48 and the subject of such Procurement Services are referred to as the “Procurement Items.” All sales of Procurement Services by Shopthe48 are governed by and subject to this Assignment and Terms and Conditions of Assignment (“Terms and Conditions”), whether or not they are specifically referenced in or incorporated by any separate written and signed agreement between Shopthe48 and you. Any conflict between these Terms and Conditions and any terms in any separate written and signed agreement between Shopthe48 and you shall be resolved in favor of these Terms and Conditions. In consideration of the Procurement Services and other good and valuable consideration, you hereby assign and transfer unto Shopthe48 your entire and undivided right, title and interest in and to the Procurement Items. Title to the Procurement Items shall pass to you upon delivery by Shopthe48 and your physical receipt of the Procurement Items. You agree to defend, indemnify and hold harmless Shopthe48 from and against all actions, claims, damages, liabilities, fees (including, without limitation, any governmental assessments and taxes), costs, losses or other expenses (including reasonable attorney's fees) resulting from or arising out of Shopthe48’s possession and ownership of the tangible property that is the subject of the Procurement Services.
  2. Your Assent to and Acceptance of these Terms and Conditions. Your assent to these Terms and Conditions shall be conclusively presumed from your: (i) receipt of any acknowledgement and acceptance by Shopthe48 of your order; (ii) instructing Shopthe48 to ship any of the Procurement Items; (iii) acceptance of or payment for all or any part of the Procurement Services; or (iv) taking any other action evidencing your acceptance of the benefits of these Terms and Conditions between Shopthe48 and you. Shopthe48 may commence performance in reliance upon your acceptance of these Terms and Conditions, and Shopthe48 will not be obligated to provide the Services unless Shopthe48 affirmatively acknowledges your order. SHOPTHE48 AND YOU AGREE THAT THESE TERMS AND CONDITIONS ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE CONTROLLING AND FINAL TERMS AND CONDITIONS.
  3. Entire Agreement. Except as otherwise agreed to by Shopthe48 in writing, the Terms and Conditions set forth herein shall constitute the complete and final agreement between you and Shopthe48 (hereinafter, this “Agreement”) regarding the subject matter, superseding completely any prior oral or written communications.
  4. Modification. No modification of this Agreement or waiver of any of its terms will be binding on Shopthe48 unless clearly expressed in writing and signed by an authorized representative of Shopthe48. This paragraph excludes from the Agreement, among other things, any purported modifications and waivers by oral agreement, course of performance, and usage of trade. You and Shopthe48 expressly agree that Shopthe48 may modify these Terms and Conditions from time to time, and such modifications shall be binding upon you with respect to any purchase made after the date of such modification.
  5. Delivery. Delivery dates are approximate. The failure to meet an indicated delivery date will not constitute a breach of this Agreement. In no event shall Shopthe48 be liable for any claims for labor or for any special, indirect, incidental, or consequential damages including, but not limited to, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), lost sales, or any other damages resulting from delay in delivery. If delivery is delayed, Shopthe48 may reschedule delivery as determined in Shopthe48’s sole discretion. YOU ACKNOWLEDGE AND AGREE THAT YOU KNOWINGLY WAIVE ANY CLAIM FOR DAMAGES ON ACCOUNT OF DELAY IN DELIVERY OR PERFORMANCE BY SHOPTHE48.
  6. Procurement and Risk of Loss. Shopthe48 may, in its sole discretion, select the shipping method, the carrier and the applicable freight charges for the Procurement Services. You shall indemnify and hold harmless Shopthe48 from and against any claims, damages or liabilities suffered by Shopthe48 resulting from any acts or omissions of carrier. Risk of loss to the Procurement Items shall pass to you at the point of shipment from Shopthe48's facility, whether to a third-party otherwise and whether freight prepaid or freight collect to destination. Risk of loss for damage or delay in transit shall be borne by you. You shall file and pursue any claims directly with the carrier related to loss, damage or delay in transit, and you shall not assert such claims against Shopthe48 or deduct from amounts owing to Shopthe48.
  7. Non-Conforming Procurement Items. No claim for damages for non-conforming Procurement Items will be allowed unless you provide Shopthe48 with written notice of the claim within ten (10) days of the date the Procurement Items were delivered to you. To assert such a claim, you must provide reasonable evidence to support the claim that: (i) Shopthe48 shipped non-conforming Procurement Items to you; and (ii) such shipment error was the result of Shopthe48 and not any third party that was the original seller of the Procurement Items to you. If requested by Shopthe48, the non-conforming Procurement Items must be returned to Shopthe48 at your expense within ten (10) days of Shopthe48's request. No claims, rejections or returns for non-conforming Procurement Items will be permitted unless you cooperate, as determined in Shopthe48’s sole discretion, in full with Shopthe48’s personnel.
  8. Delays, Abandonment and Cancellations by You. “Delay/Cancellation Costs” include all labor, materials, overhead, general and administrative costs, surcharges levied on material by third parties, value of storage space, inventory tax charges, banking and finance charges, scrapping and disposal fees, and other harm, costs and charges incurred directly or indirectly by Shopthe48 in connection with a refusal of delivery, abandonment, delay or cancellation of an order for the Procurement Services. You are not entitled, without Shopthe48's prior written consent, which may be withheld or conditioned in Shopthe48's sole discretion, to cancel, refuse, abandon or delay a shipment of Procurement Items. Shopthe48 may treat as a cancellation any proposed delay greater than 30 days or any refusal to accept delivery or abandonment of a shipment. In the event of a refusal, abandonment, cancellation or delay not consented to by Shopthe48, you shall pay all applicable Delay/Cancellation Costs, as determined in Shopthe48’s sole discretion, which, in the case of cancellation, may also include a reasonable and equitable profit for Shopthe48. If Shopthe48 does not timely receive the Procurement Items from the applicable third party or if such Procurement Items do not strictly conform to the Procurement Items that are subject to the Agreement between Shopthe48 and you, Shopthe48 may delay performance of or cancel the Procurement Services without liability, and you shall compensate Shopthe48 for all Delay/Cancellation Costs. In the event of any authorized cancellation, you agree to pay Shopthe48 (upon demand) for all Delay/Cancellation Costs associated with the return of any goods.
  9. Disclaimer of Warranties. SHOPTHE48 MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
  10. Limitation of Liabilities. SHOPTHE48'S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE SHIPMENT SERVICES, AND UNDER NO CIRCUMSTANCES SHALL SHOPTHE48 BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, COSTS OF SHIPMENT, LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST SALES, OR CLAIMS OF YOUR CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES OR PENALTIES, WHETHER OR NOT YOU ARE LEGALLY OBLIGATED TO PAY THEM AND WHETHER OR NOT SHOPTHE48 WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. SHOPTHE48'S LIABILITY HEREUNDER SHALL BE LIMITED TO REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF THE SHIPMENT SERVICES. SHOPTHE48 AND YOU EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE SHIPMENT SERVICES IS CONSIDERATION FOR THE LIMITATION ON SHOPTHE48'S LIABILITY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.
  11. Force Majeure. Shopthe48 shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, from causes beyond its reasonable control, including, but not limited to: acts of God; your acts; strikes or other labor disturbances regardless of whether or not Shopthe48 is capable of settling such strike or disturbance; facility conditions; temporary or permanent facility closures; equipment failure; inability to obtain fuel, material, or parts; war; acts of terrorism; sabotage; riot; delays in transportation; repairs to equipment; natural disasters; epidemics; floods; fires; action of governmental authorities (valid or invalid); severe weather conditions; accidents; explosions; failure of or inability to obtain power, raw materials, suppliers, labor, equipment or transportation; a court or administrative injunction or order; or any other contingency the non-occurrence of which was a basic assumption on which this Agreement was made.
  12. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Oregon and the United States of America, without regard to conflict of laws principles. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT. You hereby expressly and irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the State of Oregon for any litigation which may arise out of or be related to this Agreement or the purchase of Procurement Services. Any action brought in any such court may not be transferred or removed to any other court. You waive any objection based upon forum non-conveniens or any objection to venue of any such action.
  13. Statute of Limitations. Shopthe48 and you agree that any action, regardless of form, arising out of this Agreement or the Procurement Services must be brought within one year after the date on which the Procurement Services were provided to you or the date on which the event or omission giving rise to the action occurred, whichever is earlier.
  14. Non-Waiver. The failure of Shopthe48 to enforce any of the provisions of this Agreement shall not be construed as a waiver of Shopthe48's right to enforce each and every provision hereof. Shopthe48 reserves the right to enforce these terms and conditions at any time and none shall be deemed waived unless such waiver is in writing signed by an authorized representative of Shopthe48. Shopthe48's rights and remedies set forth in this Agreement are in addition to all legal and equitable rights and remedies available to Shopthe48.
  15. Assignment. You shall not assign or delegate any or all of its rights or obligations under this Agreement without the prior written consent of Shopthe48, and any attempt to do so will be ineffective and void.
  16. Relationship of the Parties. Shopthe48 and you are independent parties and nothing in this Agreement shall make either party an agent, partner, joint venturer, or legal representative of the other.
  17. Severability. If any provision or part of a provision of this Agreement is declared invalid, illegal, or unenforceable under applicable law, the affected provision will be considered omitted or modified to conform to applicable law. The validity, legality, and enforceability of all other remaining provisions or parts of provisions will remain in full force and effect.