TERMS AND CONDITIONS OF SALE, Engineering Investments, LLC dba GOfermentor
TERMS AND CONDITIONS OF SALE
The following Terms and Conditions of Sale (hereinafter, this “Agreement”) constitute a binding agreement between you (hereinafter, “PURCHASER”) and Engineering Investments, LLC dba GOfermentor (“hereinafter “COMPANY”).
COMPANY and PURCHASER are sometimes hereinafter referred to individually as a “Party” and jointly as “the Parties.”
1. DEFINITIONS. As used in this Agreement,
a) “Effective Date” means the date on which Purchaser purchases any Product(s) (as defined below).
b) “Party” refers to PURCHASER or COMPANY individually, and “the Parties” refers to PURCHASER and COMPANY jointly.
c) “Product(s)” means any of the Products sold or provided to PURCHASER by COMPANY.
2. COMMENCEMENT OF AGREEMENT. This Agreement takes effect upon purchase by PURCHASER of any of the Products and constitutes good and valuable consideration for COMPANY’s sale of such Product(s) to PURCHASER. PURCHASER acknowledges and agrees that s/he has entered into this Agreement voluntarily, intelligently, and with full knowledge of its consequences.
3. LIMITED WARRANTY AND EXCLUSIONS.
a) Limited Warranty. COMPANY warrants that all Products shall be free from defects in workmanship and materials under normal use and conditions for a period of one (1) year from the date of purchase, except that with respect to Goliners and SmartBarrel Liners (or any other Product that has a one-time use), the foregoing warranty expires upon use. THIS LIMITED WARRANTY IS GRANTED ONLY TO THE ORIGINAL PURCHASER AND IS VOID UPON SALE OR TRANSFER OF THE PRODUCT TO ANY THIRD PARTY.
b) What is not covered by the Limited Warranty. The Limited Warranty does not cover (i) the use of any Product for other than its intended purpose; (ii) normal wear and tear; (iii) damage caused by faulty installation; (iv) failure to follow instructions; (v) lack of reasonable care; (vi) misuse; (vii) abuse; (viii) accident; (ix) alteration; (x) modification; (xi) tampering; (xii) any negligent act or omission on the part of any person other than COMPANY; or (xiii) repair or service not expressly authorized by COMPANY in writing.
c) Exclusion of all other warranties.
(i) Except for the Limited Warranty provided in Section 3.a above, all Products are sold “as is” and COMPANY expressly disclaims all other warranties, whether express or implied, including any implied warranties of merchantability, quality, or fitness for a particular purpose. No oral or written information or advice given by COMPANY or any of its representatives shall create any warranty, express or implied, or in any way alter the scope of the Limited Warranty or the Parties rights or remedies provided in this Agreement.
(ii) Some jurisdictions do not allow the exclusion of implied warranties, so some of the exclusions contained in this Agreement may not apply to PURCHASER. In such event, any implied warranty shall be limited in duration to ninety (90) days from the date of invoice or to the minimum period prescribed by law, and the remedy for breach of such implied warranties shall be limited to the Sole and Exclusive Remedy specified in Section 4 below.
(iii) By purchasing any Product, PURCHASER acknowledges and agrees that COMPANY has made no representations or warranties, express or implied, to or for the benefit of PURCHASER which contradict any of the foregoing.
4. PURCHASER’S SOLE AND EXCLUSIVE REMEDY AND LIMITATIONS ON LIABILITY.
a) Sole and Exclusive Remedy. All warranty claims must be made by PURCHASER within the Warranty Period for the applicable Product, and are subject to verification by COMPANY. In the event of any breach of warranty, COMPANY will, at COMPANY’s option and expense, repair or replace the Product. This remedy is intended to be the sole and exclusive remedy of the buyer under this contract. Should this Sole and Exclusive Remedy fail of its essential purpose, however, COMPANY will return the purchase price of the Product to PURCHASER minus the shipping costs for return of the Product to COMPANY. PURCHASER and COMPANY further agree that, regardless of the failure of the Sole and Exclusive Remedy, COMPANY will not be liable for any consequential damages of any kind or nature whatsoever, including but not limited to the loss of grapes, or dissatisfaction with the quality of wine produced using any of the Products.
b) Limitations on Liability. IN NO EVENT SHALL COMPANY OR ITS PRINCIPALS, OFFICERS, EMPLOYEES, OR REPRESENTATIVES (“COMPANY’S RELATED PERSONS”) BE LIABLE TO PURCHASER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF PRODUCT OR PRODUCTION, LOSS OF GOOD WILL, OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGE INCURRED BY PURCHASER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO PURCHASER’S USE OR MISUSE OF, OR INABILITY TO USE, ANY PRODUCT. THESE LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER COMPANY OR ITS RELATED PERSONS WERE ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE.
c) Intention of the Parties to Exclude Consequential Damages. The Parties intend the exclusion of consequential damages in Sections 4.a and 4.b above as independent agreements apart from the Sole and Exclusive Remedy provided herein.
5. ASSUMPTION OF RISK and RELEASE AND WAIVER.
a) Assumption of Risk. PURCHASER acknowledges that the Products are currently experimental in nature and assumes any and all risks and liabilities associated with the use or misuse of, or inability to use, any of the Products, whether or not such risks are now known to PURCHASER.
b) Release and Waiver. In consideration of being permitted to purchase any of the Products, PURCHASER, on behalf of him/herself and his/her personal representatives, guardians, heirs, successors, assigns, and any other person claiming through PURCHASER (“PURCHASER’s Related Persons”), hereby releases, waives, and discharges COMPANY and COMPANY’s Related Persons from any and all claims, demands, losses, expenses, and damages of any kind or nature whatsoever, and covenants not to sue COMPANY or COMPANY’s Related Persons in connection therewith.
c) Indemnification. PURCHASER, on behalf of him/herself and PURCHASER’s Related Persons shall and hereby does indemnify and hold harmless COMPANY and COMPANY’s Related Persons from and against any and all claims, demands, losses, expenses, and damages of any kind or nature whatsoever (i) resulting from or arising out of the use, misuse or inability to use any of the Products, or (ii) resulting from any claim, demand, lawsuit, or action by PURCHASER or PURCHASER’s Related Persons that would constitute a breach of any obligation, covenant or promise by PURCHASER in this Agreement.
6. Non-Applicability of United Nations Convention on Contracts for the International Sale of Goods. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
7. Governing Law and Exclusive Venue. Any and all matters of dispute between the Parties, whether arising out of or related to this Agreement or from alleged extra-contractual dealings, interactions, or facts prior to or subsequent to the purchase of any Product, including, without limitation, claims for fraud, misrepresentation, negligence, or any other alleged tort or violation of contract (collectively, “Claims”), shall be governed by and construed, interpreted and resolved in accordance with the laws of the State of New Jersey, regardless of the legal theory upon which such matter is asserted and without regard to the State of New Jersey’s choice of law provisions. All Claims shall be submitted exclusively to the federal and state courts of competent jurisdiction located in Somerset County, New Jersey, and the Parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection they may now or hereafter have with respect thereto.
8. California Code of CiviI Procedure Section 1542, If California Code of CiviI Procedure Section 1542 is, for any reason, found applicable to the purchase of any of the Products or this Agreement, Purchaser hereby acknowledge and agrees as follows:
a) California Code of Civil Procedure section 1542 provides that: “”A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor;”
b) PURCHASER hereby expressly waives any and all rights and/or benefits that s/he may have against COMPANY and COMPANY’s Related Persons under California Civil Code section 1542 or any other statute or common law principles of similar substance and effect; and
c) PURCHASER represents, acknowledges, and agrees that s/he is knowingly and voluntarily waiving the provisions of California Civil Code section 1542 as a part of this Agreement.