Terms & Conditions
Terms & Conditions
By accepting this quotation or acknowledgement and/or placing an order, Buyer agrees to be bound by all terms, regardless of any terms in Buyer’s communications.
1. Title. Title to and risk of loss for all Products shall pass to Buyer when the Products are loaded on a trailer or rail car at such manufacturing plant. “Products” include the items described on the attached quote sheet and any replacements or substitutes for such items.
2. Raw Material Price Adjustments. Prices may be adjusted (up or down) on no less than thirty (30) days prior written notice from Seller to Buyer at any time during the term for changes in the price of raw materials. The initial prices for Products reflect current market resin prices. The resin price adjustment shall be calculated, unless otherwise provided in the attached quote sheet, as follows: for each $0.01 per pound change, the price for Products will be increased/decreased by the following factor: $0.025 x gram weight per Products = price increase/decrease per thousand (1,000) Products. All raw materials purchased by Seller for Buyer (i.e., colorant, corrugate, labels, liners, etc.) shall be purchased by Buyer (and Seller will bill back and invoice Buyer) should Buyer’s purchase order be cancelled or the Product not taken by Buyer in a reasonable time period. In the event of such a bill back, Buyer shall have, upon payment of the amount owing, the right to receive any such raw materials so purchased.
3. Quantities. If Buyer wishes to exceed its initial quantities estimate it shall provide notice to Seller in sufficient time to allow Seller to adjust its manufacturing capability to meet the additional requirements. Seller shall not be responsible for its failure to supply excess quantities unreasonably disproportionate to the stated estimate. As standard in the industry, quantities shipped may be +/- 10% of the quantity ordered.
4. Acceptance of Delivery. Buyer shall accept delivery of the Products hereunder if the delivery complies in all material respects with the Specifications (described and defined below in Paragraphs 7 and 8). Buyer shall inspect all of the Products delivered hereunder within ten (10) days of their delivery. Buyer shall provide Seller with written notice of its rejection of a delivery, in whole or in part, within thirty (30) days of such delivery. Any notice of rejection shall specify in detail the reason(s) for rejection. If Buyer shall fail to provide Seller with such written notice within thirty (30) days of delivery, then the delivery shall be deemed to have accepted by Buyer as of the thirtieth day after delivery. A delivery shall be deemed to have complied in all material respects with the Specifications if defective Products are not in excess of one percent of all Products contained in the delivery (the “Allowance”). If Buyer shall send a notice of rejection, or otherwise make a claim within the time frames set forth below in Paragraph 6, then Seller shall be given an opportunity to conduct an adequate investigation in such way as it may determine the facts upon which the rejection or claim is made. Defective products shall be retained by Buyer for disposition instructions from Seller. No defective Products are to be returned by Buyer unless specifically authorized by Seller.
5. Payment Terms. All prices to be quoted by Seller are F.O.B. Seller’s (or Seller’s manufacturer’s) manufacturing plant. Payment terms for Products shipped to Buyer are net 30 days from the date of Seller’s invoice (the “Due Date”). Payment must be received in full by Seller no later than the Due Date or interest may be assessed by Seller (in its sole discretion) on all past due amounts at the rate of twelve percent (12%) per annum from the Due Date until the date payment is received in full. Payment terms are an extension of credit based upon an evaluation of Buyer’s financial condition as reflected in written information from Buyer. Upon request, Buyer will furnish Seller financial statements and other evidence of its financial condition necessary to establish, in Seller’s opinion, Buyer’s ability to timely perform its obligations. If Seller reasonably believes Buyer’s ability to make payments is impaired or its financial condition has materially deteriorated, Seller may from time to time amend Buyer’s payment terms, require past due amounts to be paid and/or require posting of adequate security or such other documents as Seller may reasonably require. Pending receipt of requested items, Seller may withhold delivery of Products and providing services; place Buyer on a C.O.D. basis; and/or require Buyer to pay part or all of any past due amount as a condition to continued service.
6. Claims. All claims for any cause whatsoever (whether such cause be based in contract, negligence, strict liability, other tort or otherwise) shall be deemed waived unless made in writing and received by Seller within sixty (60) days after Buyer’s receipt of the Products, in respect to which such claim is made, or, if such claim is for non-delivery of such Products, within sixty (60) days after the date upon which such Products were to be delivered, provided that as to any such cause not reasonably discoverable within such sixty (60) day period (including that discoverable only in processing, further manufacture, other use or resale) any claim shall be made in writing and received by Seller within one hundred eighty (180) days after Buyer’s receipt of the Products, in respect to which such claim is made, or within thirty (30) days after Buyer learns of the facts giving rise to such claim, whichever shall first occur. Failure of Seller to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of such claim irrespective of whether the facts giving rise to such claim shall have then been discovered or of whether processing, further manufacture, other use or resale of the goods shall have then taken place.
7. Specifications. Specifications (as defined herein) for Products shall be changed only upon the mutual written agreement of both parties.
8. Warranties. Subject to the Allowance contained in Paragraph 4 above and the limitations set forth in Paragraph 11 below, Seller warrants title and that all Products sold shall conform to the specifications (“Specifications”) agreed upon by both parties in writing and attached to the parties’ Agreement(s) (the term “Agreement(s) as used in these Terms includes any Quotation(s) of Seller that are accepted by Buyer). Otherwise, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCTS, whether used alone or in combination with other substances. Moreover, BUYER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER GOODS SOLD HEREUNDER ARE SUITABLE FOR THE MATERIALS BEING PLACED IN THEM BY OR AT THE DIRECTION OF BUYER OR THE ULTIMATE USER AND FOR DETERMINING THE PROPER METHODS OF FILLING THE PRODUCTS AND THE CLOSURES TO BE USED ON THE PRODUCTS, TAKING INTO ACCOUNT THE LIKELY STORAGE AND THE USE OF THE FILLED PRODUCTS BY BUYER, THE PACKAGER, AND/OR THE ULTIMATE USER.
9. Termination. A party shall have the right at any time to terminate the parties’ Agreement(s) upon the occurrence of any one or more of the following: (a) breach of the Agreement(s) by the other party in the performance of any of the terms, conditions, warranties, covenants or other provisions of the Agreement(s), which breach is not cured within thirty (30) days following written notice of such breach to the defaulting party (or within fifteen (15) days of such notice in the case of a breach of an obligation to pay money); or (b) the making by the other party of an assignment for the benefit of creditors, the appointment of a trustee or receiver or similar officer of any court for the other party, or the institution of bankruptcy or similar proceedings by or against the other party. Termination of the Agreement(s) pursuant to this Paragraph 9 is in addition to all other remedies that may exist in favor of the terminating party for a breach of the Agreement(s), and all such remedies shall be cumulative; provided, however, upon any termination pursuant to this Paragraph 9, Buyer shall remain liable to pay Seller for (i) Products produced to date of termination, (ii) raw material purchased for production in accordance with Paragraph 2 above, (iii) shipment of Products, (iv) any outstanding mold costs, and (v) any other amounts due Seller for finished goods that comply with the terms hereof.
10. Force Majeure. If Seller’s performance is prevented, delayed or otherwise affected by any cause beyond its control, including labor disputes, fire, terrorism, acts of God, unavailability of Product, transportation, materials or fuel, delays by suppliers, loss of facilities or internet, telecommunication or electrical systems, voluntary foregoing a right in order to comply with or accommodate government orders or requests, compliance with any law or otherwise (“Force Majeure”), Seller may reduce or eliminate Products without liability or obligation during the Force Majeure
11. Limitation of Damages. Buyer’s exclusive remedy for Product(s) proven to be other than as warranted shall be at Seller’s option: (i) refund of the purchase price; or (ii) the repair or replacement of the Product(s) without charge, F.O.B. point of destination, but only within the Continental United States. Seller’s liability for any and all loss or damage to Buyer resulting from any cause whatsoever including but not limited to Seller’s negligence, damaged or defective Product(s) irrespective of whether such defects are discoverable or latent or irrespective of whether the claim arises out of tort, contract or any other legal theory, shall in no event exceed the aggregate purchase price of the particular Product(s) with respect to which losses or damages are claimed. Independent of any other provision of these Terms or otherwise, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER DIRECTLY FOR BREACH OR FOR THIRD PARTY CLAIMS AGAINST BUYER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE, COSTS OF RECALL, LOST PROFITS, LOSS OF BUSINESS OR GOODWILL, OR INJURY TO PROPERTY AS A RESULT OF SELLER’S BREACH OF ANY WARRANTY, ANY OTHER TERM OF THESE TERMS, AND/OR ANY OTHER AGREEMENT BETWEEN SELLER AND BUYER, REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED, HAS OTHER REASON TO KNOW, OR IN FACT KNOWS OF THE POSSIBILITY THEREOF. If Seller furnishes technical or other advice to Buyer, whether or not at Buyer’s request, with respect to processing, further manufacture, other use or resale of the Products, Seller shall not be liable for, and Buyer assumes all risk of, such advice and the results thereof.
12. Administration. The parties recognize that, during the term of the parties’ Agreement(s), purchase orders, letters, e-mails, invoices, releases and other routine documents (collectively “Forms”) may be used to implement or administer provisions of these Terms. Therefore, the parties agree that these Terms shall prevail in the event of any conflict between these Terms and the printed provisions of such Forms, or typed provisions of Forms that add to, vary, modify or are in conflict in any way with the provisions of these Terms. In the event Seller and Buyer do not both sign a formal “Supply Agreement” or similarly styled document that incorporates or supersedes these Terms, then these Terms shall become part of (and shall be incorporated into) the parties’ Agreement(s) and shall not be varied by Forms and shall be the entire Terms of the parties. Neither party may assign the parties’ Agreement(s) without the prior written consent of the other party, except that each party may assign its rights and obligations under the parties’ Agreement(s) (so long as the assigning party remains liable to the non-assigning party) to a purchaser of substantially all of its assets, without consent and upon notice from the assigning party to the non-assigning party.
13. Dispute Resolution. All disputes involving any agreement between Seller and Buyer shall be submitted to a single arbitrator appointed by and operating under the Commercial Rules of the American Arbitration Association. The location of the arbitration hearing shall be Southfield, Michigan. All documents, records, information, and other materials (“Arbitration Materials”) submitted in the arbitration shall be confidential and shall not be disclosed without the consent of the party submitting the Arbitration Materials. The arbitration session shall be held no later than sixty days after the date on which the arbitrator is appointed, unless otherwise ordered by the arbitrator. The arbitrator shall render a decision within twenty business days after the conclusion of the arbitration session. The decision of the arbitrator shall be final and binding on Seller and Buyer, in the absence of manifest error, and may be enforced by any court having competent jurisdiction. The cost of the arbitrator shall be shared equally by Seller and Buyer unless otherwise ordered by the arbitrator. The successful party in any arbitration or subsequent legal action may recover all costs, including reasonable attorneys’ fees.
14. Confidentiality. Seller shall not disclose to others, Buyer’s confidential information either during the performance of the parties’ Agreement(s), or thereafter. “Confidential information” as used herein shall mean all information, data and experience of Buyer relating to Buyer’s products, whether of a technical, engineering, operational, or economic nature, which is designated or treated as confidential by Buyer, all price and technical information including but not limited to, the formulation, composition, analysis, design, materials, instructions, use, process or otherwise.
15. Miscellaneous. Michigan law will govern these Terms, any other Agreement(s) between Seller and Buyer, and all other aspects of Seller’s and Buyer’s relationship without reference to conflict of laws provisions. Any waiver or delay in enforcing any of the parties Agreement(s) will not deprive a party of the right to act at another time or due to another breach. All provisions of these Terms are severable. These Terms supersede prior oral or written agreements by the parties that relate to its subject matter. Captions are intended for convenience of reference only. The parties may not modify these Terms other than by a subsequent writing signed by each party. These Terms will be interpreted as if written jointly by Seller and Buyer.
FOR ONLINE QUOTATIONS AND ORDERS
This website and any mobile application (collectively, this “Site”) is owned by Optima Products (“We”, “Us” or “Optima Products”). We are providing you with access to this Site and our online store (together, our “Services”) subject to the following terms and conditions.
By browsing, accessing, using, registering for or purchasing merchandise on this Site or otherwise using our Services, you are agreeing to all the following terms and conditions, including any policies referred to herein (collectively, these “Terms”). So, please read these Terms carefully. We reserve the right to change this Site and these Terms at any time. If you are unwilling to be bound by these Terms‚ you should not browse, access‚ use‚ register for or purchase merchandise from the Site.
Use of This Site. Subject to your compliance with these Terms‚ We grant you a limited‚ non-exclusive‚ non-transferable‚ non-sublicensable license to access and make personal‚ non-commercial use of this Site. This license grant does not include: (a) any resale or commercial use of this Site or content therein; (b) the collection and use of any product listings or descriptions; (c) making derivative uses of this Site and its contents; or (d) use of any data mining‚ robots‚ or similar data gathering and extraction methods on this Site. You may not use‚ frame or utilize framing techniques to enclose any of our trademark‚ logo‚ content or other proprietary information (including the images found at this Site‚ the content of any text or the layout/design of any page or form contained on a page) without our express written consent. Further‚ you may not use any meta tags or any other “hidden text” utilizing our name‚ trademark‚ or product name without our express written consent. Any breach of these Terms shall result in the immediate revocation of the license granted in this paragraph without notice to you.
Account. To access some features of this Site‚ you may be required to register and We may assign to you, or you may be required to select, a password and user name or account identification. If you register‚ you agree to provide Us with accurate and complete registration information‚ and to inform us immediately of any updates or other changes to such information.
You are solely responsible for protecting the security and confidentiality of the password and identification assigned to you. You shall immediately notify Us of any unauthorized use of your password or identification or any other breach or threatened breach of this Site’s security. Each time you use a password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with these Terms, and We have no obligation to investigate the authorization or source of any such access or use of this Site. YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING THE PASSWORD AND IDENTIFICATION ORIGINALLY SELECTED BY, OR ASSIGNED TO, YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.
Prices. Prices and product specifications are subject to change without notice. Prices billed will be those in effect at the time the order is submitted. Prices will fluctuate up or down based on the prevailing market conditions for each type of raw material. We reserve the right to update prices due to errors, with or without notice to you. For questions about our most current prices, please contact us at 832.987.3279 or email [email protected]
Typographical Errors. All efforts are made to have accurate pricing and product specifications. In the event that a price or product specification is listed incorrectly, we reserve the right to refuse or cancel any orders placed for the product at the incorrect price.
Protected Content & Images. All product images are for illustrative purposes only. The actual product you receive may vary. Please refer to the product description for specific details of the product.
The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
The Company name, Trademarks set forth on our Trademark webpage, the Optima Products logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.
Reliance on Information Posted. The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
Notice. Optima Products may deliver notice to you by means of email to the email address you have provided to us, a general notice on the Website, or by other reliable methods, to the street address you have provided to us. In the event that a problem occurs with your order, we will attempt to contact you via email or phone to resolve the problem. If, after two business days, we are unable to contact you to resolve the issue, we reserve the right to cancel your order. It is your responsibility to ensure that email spam filters are set to allow these notifications to be received successfully from Optima Products.
Purchases on This Site. You agree that all your transactions with or through this Site may, at Our option, be conducted electronically from start to finish. If We decide to proceed non-electronically, those transactions will still be governed by the remainder of these Terms unless you enter into different terms provided by us. You are responsible to print or make an electronic a copy of these Terms and any other contract or disclosure that we are required to provide to you.
Minimum Order Amount. We do not require a minimum order. However, a $10 small order handling fee will be incurred for every order under $100 pre-tax.
Tax Exemption. Tax exempt customers buying for the first time will be assessed tax on the first order only. Once placing the first order, tax exempt customers must provide a copy of their tax exemption certificate within 5 business days of their initial order to have this information added to their new account. All future orders will be processed as tax-exempt.
Shipping & Handling. Online orders will ship in 24-48 hours, Monday through Friday. Exceptions include holidays, Optima Products’ annual physical inventory period, inclement weather or extreme volume.
Freight Prepaid: Most orders ship via UPS Ground “freight prepaid” with shipping & handling added to the invoice or order total.
LTL Shipments: Rates for LTL shipments may not include additional fees such as residential delivery, lift gate, or delivery appointment notification. These fees will be added to your invoice and are your responsibility. If any of these special services are required, please contact us at 832.987.3279. Delivery requiring a signature is furnished upon request only.
Missing or Damaged Merchandise Claims
Freight Prepaid: Claims for merchandise missing or damaged in transit should be made immediately upon receipt, and no later than 30 days after receipt of delivery, by calling Customer Service at 832.987.3279.
LTL Shipments: For LTL Pallet deliveries, please inspect the pallet before signing. Signing the delivery receipt confirms that you are accepting the shipment in good condition and with no missing items. If any of the merchandise is missing or damaged, you must notate this on the delivery receipt.
Returns. All requests for returns must be received by us within 30 days of the original purchase. Please note that all items must be unused, in their original condition, and in their original boxes.
All returns are subject to approval. Please contact us at [email protected] or call 832.987.3279 to receive a return authorization number. We will only accept returned product(s) and issue credit if a return authorization number is clearly noted on the return.
All shipping costs for returns will be the responsibility of the customer. All returns will be charged a 25% restocking fee. This amount will be deducted from the credit issued to you.
Warranty Disclaimer. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Website for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, DEVICES, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY PRODUCTS, SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ADEQUACY, USEFULNESS, TIMELINESS, ACCURACY, SHELF LIFE OR AVAILABILITY OF THE WEBSITE OR ANY INFORMATION OBTAINED FROM THIS WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY PRODUCTS, SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
Items depicted or described herein are not necessarily suitable for every kind of use and, therefore, UNLESS OTHERWISE STATED IN WRITING, OPTIMA PRODUCTS MAKES NO WARRANTY THAT THE CONTAINERS, CLOSURES, AND OTHER ITEMS DEPICTED OR DESCRIBED HEREIN ARE FIT FOR ANY PARTICULAR PURPOSE OR SHELF LIFE. ITEMS ARE SOLD “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OPTIMA PRODUCTS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation of Liability. FOR THE WEBSITE: TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA (COLLECTIVELY, “INDIRECT DAMAGES”), AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
FOR OPTIMA PRODUCTS’ PRODUCTS AND SERVICES: Buyer’s exclusive remedy for Product(s) proven to be defective shall be at Seller’s option: (i) refund of the purchase price; or (ii) the repair or replacement of the Product(s) without charge, F.O.B. point of destination, but only within the Continental United States. Seller’s liability for any and all loss or damage to Buyer resulting from any cause whatsoever including but not limited to Seller’s negligence, damaged or defective Product(s) irrespective of whether such defects are discoverable or latent or irrespective of whether the claim arises out of tort, contract or any other legal theory, shall in no event exceed the aggregate purchase price of the particular Product(s) with respect to which losses or damages are claimed. Independent of any other provision of these Terms or otherwise, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER DIRECTLY FOR BREACH OR FOR THIRD PARTY CLAIMS AGAINST BUYER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE, COSTS OF RECALL, LOST PROFITS, LOSS OF BUSINESS OR GOODWILL, OR INJURY TO PROPERTY AS A RESULT OF SELLER’S BREACH OF ANY WARRANTY, ANY OTHER TERM OF THESE TERMS, AND/OR ANY OTHER AGREEMENT BETWEEN SELLER AND BUYER, REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED, HAS OTHER REASON TO KNOW, OR IN FACT KNOWS OF THE POSSIBILITY THEREOF. If Seller furnishes technical or other advice to Buyer, whether or not at Buyer’s request, with respect to processing, further manufacture, other use or resale of the Products, Seller shall not be liable for, and Buyer assumes all risk of, such advice and the results thereof.
Indemnification. To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold harmless Us and our subsidiaries and affiliates, and our respective officers, directors, agents, partners, members, employees, independent contractors, service providers and consultants (“Our Related Parties”), from and against any claims, damages, costs, liabilities and expenses (collectively, “Claims”) arising out of or related to (a) your access to and use or misuse of this Site; (b) any User Content you post, upload, use, distribute, store or otherwise transmit on or through this Site; (c) any Feedback that you provide; (d) your violation of these Terms; and (e) your violation of any rights of another. You agree to promptly notify Us of any third party Claims, cooperate with Us in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including but not limited to attorneys’ fees). You further agree that the We shall have the right to control of the defense or settlement of any third party Claims.
Buyer Agreement. It is the sole responsibility of the Buyer to determine the suitability of any services and products including all parts and components of the products purchased from Optima Products, and Buyer agrees that it is not relying on Optima Products in making such determination even if Optima Products provided assistance, guidance or design. The Buyer should not rely on Optima Products in making such determination. Buyer assumes full responsibility for any particular use or purpose. Buyer should not order or use any products or services unless it is satisfied that the products and services are suitable for Buyer’s use. Buyer agrees to store and use all products and services in a safe manner and in compliance with all applicable laws. Optima Products cautions Buyer, and Buyer acknowledges being advised, that not all products are compatible with the containers and other products sold on this website and Buyer agrees not to use any products with any abrasive, caustic, or acid solutions or any other substance, which may cause injury to persons or property. Buyer agrees to comply with all local, state and federal laws governing the use or resale of products sold by Optima Products.
BUYER AGREES TO CLEAN CONTAINERS THAT BUYER DEEMS SUITABLE FOR EDIBLE, RESPIRED OR VAPORIZED PRODUCTS BEFORE FILLING.
Links. This Site may contain links to other sites on the Internet that are owned and operated by third parties. You acknowledge that We are not responsible for the operation of or content located on or through any such site.
Force Majeure. If Seller’s performance is prevented, delayed or otherwise affected by any cause beyond its control, including labor disputes, fire, terrorism, acts of God, unavailability of Product, transportation, materials or fuel, delays by suppliers, loss of facilities or internet, telecommunication or electrical systems, voluntary foregoing a right in order to comply with or accommodate government orders or requests, compliance with any law or otherwise (“Force Majeure”), Seller may reduce or eliminate Products without liability or obligation during the Force Majeure period.
Waiver and Severability. No waiver by the Company of any term or condition set out in these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision.
If any provision of these Terms and Conditions is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms and Conditions will continue in full force and effect.
Disputes. All disputes involving any agreement between Seller and Buyer shall be submitted to a single arbitrator appointed by and operating under the Commercial Rules of the American Arbitration Association. The location of the arbitration hearing shall be Southfield, Michigan. All documents, records, information, and other materials (Arbitration Materials) submitted in the arbitration shall be confidential and shall not be disclosed without the consent of the party submitting the Arbitration Materials. The arbitration session shall be held no later than sixty days after the date on which the arbitrator is appointed, unless otherwise ordered by the arbitrator. The arbitrator shall render a decision within twenty business days after the conclusion of the arbitration session. The decision of the arbitrator shall be final and binding on Seller and Buyer, in the absence of manifest error, and may be enforced by any court having competent jurisdiction. The cost of the arbitrator shall be shared equally by Seller and Buyer unless otherwise ordered by the arbitrator. The successful party in any arbitration or subsequent legal action may recover all costs, including reasonable attorneys’ fees.sale
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