Terms and Conditions
This document is to describe the terms and conditions of the purchase outlined on the “DID Order Form” (herein referred to as “The Agreement”) made between “D.I.D. Nails, LLC” (Party-1, Seller) and Party-2 (“Buyer”). The agreement describes Party-1’s sale of Deliverables to Party-2. Party-2 and Party-1 therefore agree as follows:
1. DEFINITIONS. (a) “Deliverables” means the deliverables Party-1 provides to Party-2 as described in The Agreement.
2. DELIVERABLES. Party-1 agrees to provide the Deliverables from The Agreement.
3. OWNERSHIP. (a) Ownership, Title, and Risk of Loss. Ownership of, title to, and risk of loss for the Deliverables passes to Party-2 upon Party-1’s delivery of the Deliverables to a nationally reputable carrier, fully insured with a nationally reputable insurer (insurance will be invoiced to Party-2 at cost).
(b) Pass-Through. Without limiting any other terms and conditions set forth in The Agreement, Party-1 agrees to pass through or assign to Party-2 any third party warranty and any other rights, rebates, discounts or benefits, which Party-1 receives in connection with any Deliverables.
(c) Documentation. Party-1 agrees to deliver with the Deliverables one (1) copy of the documentation and other materials that Party-1 ordinarily provides to purchasers of the Deliverables.
4. FEES. Except as expressly stated in The Agreement, there are no additional fees, charges or expenses incurred. In consideration for Party-1 performing all obligations under The Agreement, Party-2 agrees to pay Party-1 according to The Agreement
5. WARRANTIES. (a) Mutual Warranties. Each party represents, warrants and covenants to the other that: (i) Law Compliance. It complies with all applicable Laws.
(b) Warranties by Party-2. Party-1 represents, warrants and covenants to Party-2 that: (i) Warranty Length. For a period of thirty (30) days after receipt, the Deliverables conform to the requirements of The Agreement, are free from any defect in material and workmanship, and are free of all liens, claims and encumbrances of any kind.
(c) Disclaimer. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, PARTY-2 AND PARTY-1 EACH MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OR COVENANTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. INDEMNIFICATION. The term “Claim” means any claim, suit or action by any third party, and the term “Losses” means any damages awarded and fines assessed in any Claim by a court of competent jurisdiction or pursuant to an arbitration proceeding, any amounts due under Claim settlement, and any other costs or expenses incurred in complying with any injunctive or equitable relief or any settlement requirements.
(a) Termination for Insolvency. If either party is adjudged insolvent or bankrupt, or upon the institution of any proceedings by it seeking relief, reorganization or arrangement under any Laws relating to insolvency, or if an involuntary petition in bankruptcy is filed against a party and the petition is not discharged within sixty (60) days after filing, or upon any assignment for the benefit of a party’s creditors, or upon the appointment of a receiver, liquidator or trustee of any of a party’s assets, or upon the liquidation, dissolution or winding up of its business (each, an “Event of Bankruptcy”), then the party affected by any Event of Bankruptcy must immediately give notice of the Event of Bankruptcy to the other party, and the other party may terminate The Agreement by notice to the affected party.
(b) Termination for Breach. If either party breaches any provision contained in The Agreement, and the breach is not cured within thirty (30) days after the breaching party receives notice of the breach from the non-breaching party, the non-breaching party may then deliver a second notice to the breaching party immediately terminating The Agreement.
7. GENERAL. Entire Agreement and Amendments. The Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements regarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. The Agreement may be amended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge that they are independent contractors under The Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents, has the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of The Agreement. Party-2 may not subcontract any obligation under The Agreement without Party-1’s prior written consent. Party-1 can subcontract without Party-2’s consent. Each party is responsible for its subcontractors’ compliance with and breach of The Agreement as if the subcontractors’ acts and omissions were the party’s own. Governing Law and Forum. All claims regarding The Agreement are governed by and construed in accordance with the Laws of Texas, applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Texas, regardless of the inconvenience of the forum, except that a party may seek temporary injunctive relief in any venue of its choosing.
The Agreement binds and inures to the benefit of the parties’ successors and assigns. The Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in whole or in part without the prior written consent of the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior written consent is invalid. However, any party may assign The Agreement to a third party purchasing: (a) majority control of the party’s equity shares; or (b) all or substantially all of either (i) a party’s assets or (ii) the assets of the party’s relevant business unit under The Agreement. No Waivers, Cumulative Remedies. A party’s failure to insist upon strict performance of any provision of The Agreement is not a waiver of any of its rights under The Agreement. Except if expressly stated otherwise, all remedies under The Agreement, at Law or in equity, are cumulative and nonexclusive.
Severability. If any portion of The Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions. Notices. All notices, including notices of address changes, under The Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in The Agreement by each party. Captions and Plural Terms. All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of The Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.
IN WITNESS WHEREOF, the parties execute the Agreement as of the Effective Date. Each person who signs The Agreement represents that such person is fully authorized to sign the Agreement on behalf of the applicable party.