These Company Terms and Conditions of Sale (these “Terms”) govern the sale of Flextread LLC’s products (the “Products”) as set forth herein.
1. Applicability. The terms “Seller” or “we” as used herein means Flextread LLC, a New York limited liability company located at 121 West Shore Boulevard, Newark, NY 14513 (“Seller’s Location”). The terms “Buyer” or “you” or “your” as used herein means the customer designated on a Seller sales order acknowledgment (“Sales Order Acknowledgement”) that incorporates these terms. Notwithstanding anything herein to the contrary, if Seller and Buyer are parties to an Authorized Reseller Agreement at the time of sale, then such agreement shall govern the sale of Products to Buyer, and not these Terms.
2. Ordering Procedure. Buyer may order Products through Seller’s website, by submitting a purchase order form through mail (to Seller’s Location), fax (to 1-315-331-2244), or email, by phone (833-700-3539), or at Seller’s Location. If ordering through Seller’s website, click the “Shop” tab and follow the ordering procedures. When ordering by mail, fax, or email, please complete and submit an order form available in Seller’s catalog, including a telephone number where you can be reached during the day and evening. When ordering by phone, please have your customer number and a list of items ready. You may order by phone between 8:00 AM to 6:00 PM EST Monday-Friday. Orders may be sent by fax 24 hours a day. Please note that orders faxed or emailed on a Saturday, Sunday, or holiday will not be processed until the following business day.
All Products offered for purchase are subject to availability and prices are subject to change without notice. Seller reserves the right, in its sole discretion, to cancel or refuse any order for any reason at any stage of the ordering process, including after an order has been submitted and whether or not the order has been acknowledged. Examples of situations that may result in cancellation include limitations on quantities available for purchase, inaccuracies or errors in Product or pricing information, or concerns regarding Buyer’s credit or potential fraud. Seller may also require additional verifications or information before accepting any order. We will attempt to contact you if all or any portion of your order is cancelled, or if additional information is required to accept your order. Buyer shall have no right to cancel, revoke, or amend a purchase order submitted by it.
3. Payment. Unless otherwise agreed to by Seller, payment must be received by Seller at the time of order. Seller accepts Visa, MasterCard, American Express, and Discover. Buyer must include the cardholder’s name, credit card number, billing address, billing address, and security code. Seller also accepts certified bank checks, money order, and personal checks, but any order paid by personal check will be held for 5 business days. Please reference your order number on the check. You may also pay through PayPal by providing Seller with the email address that corresponds to your PayPal account. Once the information is provided to Seller, we will make a request for the funds through PayPal. All payments must be in U.S. funds. Notwithstanding the foregoing, Seller may in its discretion choose not to charge your credit card until your order has been shipped.
4. Price. Buyer shall purchase the Products from Seller at the price (the “Price”) set forth in the Sales Order Acknowledgment. All Prices are exclusive of shipping and handling charges and fees, any sales, use, and excise taxes, and any other similar taxes, and duties, charges, and fees of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, fees, taxes, duties, and costs.
5. Shipment; Delivery. The goods will be shipped within a reasonable period of time after acceptance by Seller of Buyer’s order, subject to the availability of finished Products. Shipping shall be FOB Seller’s Location. Unless expressly agreed by the parties in writing, Seller shall use its standard methods for packaging the Products and select the method of shipment of and the carrier for the Products.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order.
6. Title and Risk of Loss; Damage During Shipment. Title and risk of loss passes to Buyer upon delivery of the Products to the shipping carrier. The carrier is responsible for any merchandise lost or damaged in transit. In order to make a claim against the carrier for lost or damaged merchandise, Buyer must contact Seller within 5 days of receipt of the merchandise and provide any information and documentation requested by Seller as needed to submit a claim to the carrier. If the lost or damaged merchandise is covered by the carrier, Seller will make commercially reasonable efforts to provide replacement merchandise to Buyer, subject to availability.
7. Inspection and Rejection of Nonconforming Products. Buyer shall inspect the Products within 5 business days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means only the following: (i) product shipped is different than identified in the Sales Order Acknowledgment; or (ii) the product’s label or packaging incorrectly identifies its contents.
If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at Seller’s its expense and risk of loss, the Nonconforming Products to Seller’s Location. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Seller’s expense loss, the replaced Products.
Buyer acknowledges and agrees that the remedies set forth in this Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Products.
8. Returns. Seller will accept the return of Products for a full refund or exchange up to 30 days from the shipment date with no re-stocking fee. Returns after a 30-day period and before 60 days will be subject to a 25% restocking fee. No returns will be accepted after 60 days. Custom and special orders are not eligible for return under any circumstances. If any product is modified, altered, painted, installed, or disassembled in any way without Seller’s express written permission, the item is non-returnable. Seller always recommends professional installation of all products. Any item which has been altered, painted, installed, or deemed non-resalable by Seller will be returned to Buyer at Buyer’s expense. Seller is not responsible for labor fees associated with the installation, modification, or repair of any product purchased regardless of the circumstances.
All returns must receive prior approval and an RMA (Return Merchandise Authorization) number prior to return shipping. Packages received by Seller without prior approval and RMA number will be refused. Return shipping and insurance are Buyer’s responsibility. All returned items must be received in as new condition. Examples that render a product non-returnable include, but are not limited to: evidence of attempted installation, parts that have been bent, broken, creased, scratched, soiled, melted or discolored. Also, we will not accept returns for any items that have been altered, painted, repaired or for any reason that has rendered the product non-returnable. Warning: Seller is not responsible for damaged or lost packages returned by Buyer.
9. Limited Product Warranty; Disclaimer. Seller warrants to Buyer that, for a period of 3 years from the date of shipment of the Products (“Warranty Period“), such Products will be free from defects in material and workmanship under normal use and with proper maintenance (the “Limited Warranty”). All claims for breach of the Limited Warranty must be received by Seller no later than 30 days after the expiration of the Warranty Period. Seller shall not be liable for a breach of the Limited Warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Products are defective. The Limited Warranty does not apply where the Product has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Seller; or has been reconstructed, repaired, or altered by persons other than Seller or its authorized representative. Notwithstanding anything to the contrary in this Agreement, if Seller, upon inspection of the returned Product, determines that the Product fails to conform with this Limited Warranty, Seller’s liability is discharged, at its exclusive option and expense, by either repairing or replacing the Product.
Warranty returns from Canadian customers must be clearly marked as follows: “U.S. GOODS BEING RETURNED FOR REPAIR OR REPLACEMENT UNDER WARRANTY COMMODITY CODE 9801:00V0”.
EXCEPT FOR THE LIMITED WARRANTY SET OUT UNDER THIS SECTION 9, NEITHER SELLER NOR ANY PERSON ON SELLER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; TITLE; OR NON-INFRINGEMENT; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SELLER OR ANY OTHER PERSON ON SELLER’S BEHALF.
THE REMEDIES SET FORTH IN SECTION 9 SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9.
10. Limitation of Liability. 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 WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.
The limitation of liability set forth in Section 10 above shall not apply to liability resulting from Seller’s gross negligence or willful misconduct.
11. 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.
12. 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.
13. Entire Agreement; Amendment and Modification. These Terms and the Sales Order Acknowledgment (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 of 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. 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.
14. 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. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): ( acts of God; ( flood, fire, earthquake, epidemic, pandemic, or explosion; ( war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; ( government order, law, or action; ( embargoes or blockades in effect on or after the date of this Agreement; ( national or regional emergency; ( strikes, labor stoppages or slowdowns or other industrial disturbances; ( telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and ( other similar events beyond the control of the Impacted Party.
16. Assignment. Neither party may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party. 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. Notwithstanding the foregoing, Seller may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of seller’s assets without buyer’s consent.
17. 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.
18. 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.
19. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
20. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of Rochester and County of Monroe, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
21. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
22. 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.
23. 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: Limitation of Liability, Compliance with Laws, Governing Law, Submission to Jurisdiction, and Survival.
Last Updated: December 1, 2021