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STANDARD TERMS AND CONDITIONS OF USE – ANNUAL AGREEMENT
The term “Company”, or “Royal Supply”, shall mean CLK Global, Inc, subsidiaries and affiliates, including without limitation, their directors, officers, employees, agents, suppliers, vendors, contractors, and licensors.
The term “Site(s)” shall mean the website located at www.royalsupplywholesale.com and all associated sites linked to www.royalsupplywholesale.com by Royal Supply around the world.
The term “customer”, “user”, “you” or ““your” shall mean any user or purchaser (including without limitation their agents, affiliates, successors and permitted assigns) of products and services offered by Royal Supply.
The term “sales order” shall mean any purchase order, sales order or sales receipt produced for the purchase of products and services through Royal Supply.
The Site is the sole and exclusive property of Royal Supply.
USER ACCOUNT AND SECURITY
You may be required to open an account to use certain features and services offered through the Site. You certify that any information (including product descriptions, reviews, comments, messages, communications, feedback, submissions, suggestions, questions, data, content, materials and other information) you provide on or through the Sites is accurate and that the information you provide on or through the Sites is complete. It is your sole responsibility to maintain the confidentiality of the information you hold for your account, including without limitation, your password and for any and all activity that occurs using your account. Please notify Royal Supply immediately of any unauthorized use of your account or password, or any other breach of security. You will be held liable for losses incurred by Royal Supply or any other user of or visitor to the Site due to unauthorized use of your account. Royal Supply cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. Your account may be restricted or terminated for any reason, at Royal Supply’s sole discretion.
Payment: Customer shall make payment in full in United States Dollars to the Company. Unless otherwise specified herein, Customer shall make all payments hereunder by wire transfer, personal check, cashier’s check or as otherwise agreed to by the Company.
Taxes: All prices set forth on the Purchase Order are exclusive of, and Customer is solely responsible for, and shall pay, and shall hold Company harmless from, all taxes, with respect to, or measured by, the manufacture, sale, shipment, use or price of the goods and services (including interest and penalties thereon). Any orders delivered are taxable unless the Company receives a copy of your signed Resale Certificate. Taxable orders will be taxed at the current rate for Orange County, California regardless of their ultimate destination.
Customs/Tariffs Charges: All prices set forth on the Purchase Order are exclusive of certain reasonable tariff and variable tariff and customs costs, which may be charged (in whole or in part) to Customer at Company’s sole discretion unless otherwise agreed upon.
Late Payment: Customer shall pay interest on all late payments at the lesser of the rate of 5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse the Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. The Company may, in its sole discretion, without liability or penalty, cancel any Purchase Order, if the Company determines that the Customer is in violation of its payment obligations or is in breach of this Agreement.
TIMING AND SHIPMENT
Shipment: Shipping dates provided by the Company to the Customer are estimates only. The Company is not responsible for any delays, loss or damage that occurs during shipping.
Partial Shipment or Non-Delivery: The Company may, in its sole discretion, without liability or penalty, make partial shipments of goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of a Purchase Order. The quantity of any installment of goods as recorded by the Company on dispatch from the Company’s place of business is conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary. The Company shall not be liable for any non-delivery of any goods or services pursuant to the Purchase Order (even if caused by the Company’s negligence) unless Customer gives written notice to the Company of the non-delivery within five (5) calendar days of the date when such goods or services pursuant to the Purchase Order would in the ordinary course of events have been received. Any liability of the Company, and the Customer’s sole remedy therefor, for non-delivery of the goods or services pursuant to the Purchase Order shall be limited to Company delivering such goods and/or services within a reasonable time or adjusting the Purchase Order respecting such goods or services to reflect the actual quantity delivered.
Title and Risk of Loss: Title and risk of loss to all goods ordered by the Customer from the Company shall pass to Customer upon tendering of the goods to the applicable carrier at the Company’s facility. As collateral security for the payment of the purchase price of the goods, Customer hereby grants to the Company a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
Limited Warranties: THE COMPANY MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED WITH RESPECT TO THE GOODS AND ANY SERVICES PROVIDED HEREIN, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE; OR (D) ANY CHANGES IN APPLICABLE LAW.
Limitation of Liability: IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THE GOODS OR SERVICES OR ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THE COMPANY’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 THE COMPANY FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER.
COMPLIANCE: CUSTOMER SHOULD CONTACT THE CUSTOMER’S ATTORNEY TO OBTAIN ADVICE WITH RESPECT TO ANY QUESTION, ISSUE OR PROBLEM, INCLUDING WITHOUT LIMITATION, ANY COMPLIANCE INQUIRY. THE COMPANY CANNOT GUARANTEE THE CURRENT STATUS, ACCURACY AND COMPLETENESS OF ANY COMPLIANCE RELATED ISSUE IN CONNECTION WITH THE GOODS OR SERVICES SET FORTH HEREIN OR ANY INQUIRES OR QUESTIONS RELATED THERETO. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT ANY DESIGNS OR PHYSICAL GOODS OR SERVICES PURCHASED ARE COMPLIANT WITH APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, ANY HEAVY METALS LAWS AND REGULATIONS FOR SUCH GOODS OR SERVICES.
Indemnification: Customer shall indemnify, defend and hold harmless the Company and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to or resulting from any claim of a third party or arising out of or occurring in connection with the products purchased from the Company or Customer’s negligence, willful misconduct or breach of this Agreement. Customer shall not enter into any settlement without the Company or Indemnified Party’s prior written consent.
Compliance with Law: Customer affirms that it is in compliance with and shall comply with all applicable laws, regulations and ordinances, including compliance and cooperation with IRS Form 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business. The Customer expressly consents to the Company filing all applicable IRS documents, including without limitation IRS Form 8300, with regard to this Purchase Order or any future Purchase Orders. Customer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this agreement.
Choice of Law: This Agreement, including all exhibits, schedules, attachments and appendices attached hereto and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
Choice of Forum: Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by final, binding arbitration in Orange County, California before three (3) arbitrators; provided, however, that each party retains its right to seek injunctive relief under applicable law in a state court located in Orange County, California. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction.
WAIVER OF JURY TRIAL: EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, ANY PURCHASE ORDERS ACCEPTED BY THE COMPANY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Attorneys’ Fees and Costs: Company will be entitled to recover from Customer reasonable attorneys’ fees and costs (including, without limitation, experts’ fees) incurred by Company in enforcing this Agreement.
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. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Customer and the Company shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Amendments: This Agreement may only be amended or modified in a writing that is signed by an authorized representative of each party. This Agreement together with the schedules attached hereto (including any related Purchase Orders) constitute the complete, final and exclusive agreement between the Customer and the Company regarding the subject matter hereof and cancels and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral, between the Company and the Customer relating to such subject matter.
Waiver: No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Survival: The indemnifications representations and warranties of the parties contained herein shall survive the expiration or earlier termination of this Agreement.
Assignment: Customer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement, whether by operation or law or otherwise, without the prior written consent of the Company. Any purported assignment, transfer, delegation or subcontract in violation of this Agreement shall be null and void. No assignment, transfer, delegation or subcontract shall relieve Customer of any of its obligations hereunder. Company may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under this Agreement without Customer’s prior written consent.
Authority: If Customer executes this Agreement as a partnership, corporation or limited liability company, then Customer and the persons and/or entities executing this Agreement on behalf of the Customer represent and warrant that: (a) Customer is a duly organized and existing partnership, corporation or limited liability company, as the case may be, and is qualified to do business in the state in which the Customer’s business is located; (b) such persons and/or entities executing this Agreement are duly authorized to execute and deliver this Agreement on Customer’s behalf; and (c) this Agreement is binding upon Customer in accordance with its terms.
Successors and Assigns: This Agreement is binding on and inures to the benefit of the both parties to this Agreement and their respective permitted successors and permitted assigns.
Electronic Signature: Signatures and initials required on Sales Invoice documents may be executed via “wet” original handwritten signature or initials, or via electronic signature or mark, which shall be binding on the parties as originals, and the executed signature pages may be delivered using pdf or similar file type transmitted via electronic mail, cloud based server, e-signature technology or other similar electronic means, and any such transmittal shall constitute delivery of the executed document for all purposes of this Agreement.
- Initial Term. The term of this Agreement commences on the Effective Date and continues for a period of one (1) year, unless and until earlier terminated as provided under this Agreement (the “Initial Term“).
- Renewal Term. Upon expiration of the Initial Term, this Agreement automatically renews for additional successive one (1) year terms unless and until either Party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current term, or unless and until earlier terminated as provided under this Agreement (each a “Renewal Term” and together with the Initial Term, the “Term“).
- Seller’s Right to Terminate. Seller may terminate this Agreement upon written notice to Buyer if Buyer fails to pay any amount when due under this Agreement (“Payment Failure“) and such failure continues for thirty (30) calendar days after Buyer’s receipt of written notice of nonpayment.
- Mutual Right to Terminate. Either Party may terminate this Agreement if (i) the other Party breaches any provision of this Agreement or any Purchase Order accepted by Seller (other than a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by within thirty (30) days after receipt of written notice of such breach or (ii) if the other Party if the other party becomes insolvent, or if insolvency, receivership, or bankruptcy proceedings are commenced by or against the other party Buyer.
- Effect of Termination.
- Expiration or termination of this Agreement shall be without prejudice to any rights or obligations that accrued to the benefit of either party prior to such expiration or termination.
- Any notice of termination under this Agreement automatically operates as a cancellation of any deliveries of Goods to Buyer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Goods had been accepted by Seller. With respect to any Goods that are still in transit upon termination of this Agreement, Seller may require, in its sole and absolute discretion, that all sales and deliveries of such Goods be made on either a cash-only or certified check basis.
- Sections 10(c), 11, 12, 13, 14, 15(e), and 16-28 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.