Terms & Conditions
INVOKE COFFEE, LLC dba INVOKE
COFFEE EQUIPMENT & SALES (SELLER)
TERMS AND CONDITIONS OF SALE AND SERVICE
1. ENTIRE AGREEMENT: These Terms and Conditions, together with Seller's Equipment Purchase Agreement or Work Order for service (either being referred to herein as “Order Form”), constitute the entire and exclusive contract between Seller and Buyer. This Agreement is intended to be a final expression of the parties' understanding and agreement with respect to its terms and shall supersede all prior negotiations, promises, agreements and representations not set forth herein. Seller's acceptance of Buyer's order is expressly conditioned on Buyer's assent to these Terms and Conditions of Sale. No other terms and conditions shall apply unless specifically accepted by Seller in writing. No modifications of this Agreement shall be of any force and effect unless such modifications are made in writing and signed by the party claimed to be bound thereby. Additionally, no modification shall be effected by an oral acknowledgement or acceptance by Seller of any oral or written purchase order from Buyer containing any different terms and conditions, and any such inconsistent terms and conditions shall be deemed to be superseded by this Agreement and the other documents delivered by Seller to Buyer notwithstanding any contrary provision contained in Buyer’s purchase orders, invoices, acknowledgements or other documents.
If for any reason Buyer fails to accept this Agreement in writing, any conduct between Seller and Buyer that demonstrates the existence of a contract, including, without limitation, the delivery of goods in accordance with this Agreement prior to written acceptance hereof and acceptance of such goods by Buyer, shall constitute a binding agreement to the terms and conditions herein and the order acknowledgement attached hereto.
2. PRICE: The prices payable by Buyer for goods and services to be supplied by Seller under this Agreement are the prices set forth on the face of Seller's Order Form and are only for the quantities of goods listed and the specifications indicated. Except as otherwise indicated on the face of Seller's Order Form, Buyer is responsible for all freight and transportation charges, and all goods will be billed at the prices (including applicable freight and transportation charges) in effect as of the date of shipment. All prices and extras for undelivered goods, including all freight and transportation charges, are subject to change by Seller at any time without prior notice in the event of an increase in Seller’s costs, change in marketing conditions or any other causes beyond Seller’s reasonable control. In addition, all prices are subject to the addition of any applicable use, sales, excise or other taxes levied by any federal, state or local authority, and Buyer shall be responsible for any such taxes. Any excises, levies or taxes which Seller is required to pay or collect, under any existing or future law or regulation (domestic or foreign), upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the goods covered hereby, shall be for the account of Buyer, and Buyer agrees to promptly pay the amount thereof to Seller upon request.
3. DELIVERY AND RISK OF LOSS: Unless otherwise stated in Seller's Order Form, risk of loss shall pass to Buyer, upon delivery of the goods to the carrier. All goods shall be delivered and shipped in accordance with the delivery schedule and instructions indicated on the face of Seller's Order Form. Any special shipping instructions must be included in the Order Form. If Buyer's acts or omissions, including but not limited to failure to promptly notify Seller in writing of special shipping instructions prior to the scheduled ship date, result in Seller's failure to meet Buyer's delivery requirements and Buyer requires a more expeditious method of transportation for the goods than the transportation method originally specified by Buyer, Seller shall ship the goods as expeditiously as possible at Buyer's sole expense.
Seller’s delivery dates are estimates only and Seller shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Seller, nor shall the carrier be deemed an agent of Seller. Unless otherwise stated in Seller's Order Form, transportation shall be at Buyer's risk and expense, and any claim for loss or damage in transit shall belong to Buyer.
4. PAYMENT: All payments shall be made by check, money order, credit card or wire transfer (all fees are borne by Buyer). If paid by credit card, Buyer shall pay Seller all additional credit card fees charged to Seller as a result of such payment. If Buyer fails to accept delivery of any goods after being notified by Seller of the ship date, or if Buyer fails to pay the balance of the invoice price when due, then the unpaid balance of the invoice price shall bear interest at the rate of 1-1/2% per month from the invoice date. Seller shall retain title to all goods as security for the payment of the invoice price until payment in full has been received. If Buyer at any time fails to make payment as required under this Agreement, Seller may, in addition to any other remedies that it may have as provided by law or in equity, suspend its own performance hereunder and demand additional collateral sufficient to secure the payment of all outstanding amounts now or hereafter due from Buyer to Seller. Further, Seller shall have the right to charge Buyer reasonable storage charges on a per diem basis for any finished goods for which Buyer fails or refuses to accept delivery. Buyer hereby authorizes Seller to file UCC Financing Statements with or without the signature of Buyer to evidence Seller's security interest in the collateral.
5. LIMITED WARRANTY AND DISCLAIMERS: Subject to the limitations set forth in these terms and conditions, Seller warrants that the goods sold to Buyer will, under normal use and service, reasonably conform to any specifications that are given in writing with the merchandise being sold herein. Seller reserves the right to change any of its specifications, if applicable, at any time. The use of any sample or model during negotiations prior to the formation of any contract serves merely to indicate the type of goods tendered to Buyer. This limited warranty is the sole and exclusive warranty provided under this Agreement and extends only to the original Buyer or first intended user and does not extend to any subsequent purchasers or any other users of any goods sold hereunder. No claim against Seller shall be allowed by any party other than Buyer or the first intended user. NO OTHER WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, INFRINGEMENT, FITNESS FOR PARTICULAR PURPOSE OR OTHERWISE, SHALL EXIST IN CONNECTION WITH THE SALE OR USE OF ANY GOODS HEREUNDER, ADDITIONALLY, NO REPRESENTATION OR WARRANTY MADE BY ANY SALES REPRESENTATIVE OF SELLER WHICH IS NOT SPECIFICALLY SET FORTH HEREIN SHALL BE BINDING UPON SELLER. All claims under this warranty must be made in writing and delivered to Seller at the address listed in Seller’s invoice prior to the expiration of the Warranty Period set forth in the Limited Warranty or such claims shall be barred.
The limited warranty provided for herein does not cover, and specifically excludes, material failure resulting from normal wear and tear, abuse, neglect, improper installation, faulty maintenance, accidental or intentional damage, damage from fire, floods, earthquakes or other acts of God, and/or defects resulting from Seller’s compliance with Buyer’s specifications. Additionally, it is solely Buyer’s responsibility to test, maintain and determine the suitability of goods for any intended use, and although Seller may have recommended goods or developed goods at Buyer’s request, Buyer assumes all risk and liability whatsoever regarding the suitability of the goods for Buyer's or any other intended user's use.
6. LIMITATION OF LIABILITY: Upon receipt of a timely warranty claim from Buyer in accordance with these terms and conditions, Seller shall have the option either to inspect the goods while in Buyer’s possession or to request Buyer to deliver the goods to Seller at its factory or other designated site, at Buyer’s expense, for inspection by Seller. Seller shall, at its option, either (i) replace any goods that have been properly rejected and are reasonably determined by Seller to be in breach of the warranty, in which case Seller shall then ship the replacement goods to Buyer F.O.B. point of shipment; or (ii) if in Seller’s sole judgment circumstances are such as to preclude the remedying of a breach of any warranty by replacement, Seller shall refund to Buyer, by issuance of a credit or otherwise, the applicable part of the purchase price theretofore paid to Seller. IN NO EVENT SHALL SELLER’S LIABILITY FOR ANY DEFECTIVE GOODS UNDER THIS AGREEMENT EXCEED THE PURCHASE PRICE THEREOF. REPLACEMENT OR REFUND OF THE PURCHASE PRICE SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY OR ANY OTHER CLAIM IN RESPECT OF SUCH GOODS, INCLUDING, WITHOUT LIMITATION, THOSE CLAIMS BASED ON CONTRACT, WARRANTY, TORT, OR STRICT LIABILITY. SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR REMOVAL OR INSTALLATION COSTS, DISPOSAL COSTS, LABOR COSTS, DOWNTIME, DAMAGE TO OTHER PROPERTY, LOSS OF BUSINESS OR PROFITS, OR ANY SIMILAR OR DISSIMILAR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. The sole purpose of the stipulated exclusive remedy set forth in this paragraph shall be to provide Buyer with replacement or refund for defective goods in the manner provided herein. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing and able to replace defective goods in the manner prescribed herein or to provide a refund if, in Seller’s judgment, replacement is not feasible or appropriate under the circumstances.
7. GOODS RETURNS: Seller, in its sole and exclusive discretion, shall have the right to accept returns of goods from Buyer during the applicable Warranty Period. No goods shall be returned, however, unless (i) Seller has issued to Buyer a written return authorization number, (ii) Buyer has a valid receipt for the goods, and (iii) the Warranty Period has not expired. Buyer shall be responsible for any costs and expenses associated with the return of any goods, including, but not limited to, any applicable shipping costs.
8. FORCE MAJEURE: Seller is not liable for failure to fulfill its obligations for any accepted order or for delays in delivery due to causes beyond Seller’s reasonable control, including but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of products or materials, acts or omissions of other parties, acts or omissions of civil or military authority, governmental priorities, changes in law, material shortages, fire, strikes, floods, restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of a force majeure condition, Seller may, at its option, extend the delivery time or cancel the order in whole or in part IN NO EVENT SHALL SELLER BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR CLAIMS OF ANY NATURE RESULTING FROM FAILURE OR DELAY IN DELIVERY.
9. TERMINATION/CANCELLATION: In addition to any other remedies that Seller may have as provided by law or in equity, if Buyer (i) fails to make any payment when due hereunder, or (ii) fails on request to give proper and timely shipping instructions, or (iii) fails to accept delivery at times stated, or (iv) becomes insolvent or otherwise voluntarily or involuntarily becomes subject to any bankruptcy or receivership proceedings; or (v) delays the scheduled ship date, or (vi) otherwise fails to comply with any terms and conditions of any contract between Buyer and Seller, Seller shall have the right at its option to terminate this Agreement, recover damages and deduct any undelivered quantities of goods from the total quantities of goods to be furnished to Buyer, whether under this or any other contract between Buyer and Seller. Such damages, at Seller’s option, may include a cancellation fee equal to 25% of the purchase price which will be immediately due and payable upon demand. Additionally, Seller may, at any time or times, in the event of a default by Buyer , suspend performance of any order or require payment in cash, security or other adequate assurances satisfactory to Seller or invoice Buyer in accordance with the provisions hereof and charge Buyer interest at the rate of 1-1/2% per month and storage charges. Buyer shall not be permitted to modify or cancel its order without the prior written consent of Seller.
Seller intends to comply with all federal, state and local laws and regulations applicable to the performance by Seller of each order, but any failure of Seller to so comply shall not be a defense to, or excuse Buyer from, performance by Buyer of any order.
10. INDEMNIFICATION: Seller shall not be liable for any inaccurate, incomplete, or faulty specifications supplied by Buyer, nor will Seller be liable for any infringement or alleged infringement of any patent, trademark, design, or other intellectual property rights arising out of Seller’s compliance with Buyer’s specifications. To the fullest extent permitted by law, Buyer shall protect, defend, indemnify and hold harmless Seller, its directors, officers, shareholders and employees (collectively “Seller”) from and against any and all manner of actions, claims, demands, damages, losses, liabilities, penalties, judgments, costs and expenses of any kind whatsoever (including without limitation, attorneys’ and consultants’ fees and expenses), whether in law or in equity or otherwise, arising out of or relating to (i) any inaccurate or faulty specifications supplied by Buyer; or (ii) any infringement or alleged infringement of any patent, trademark, design or other intellectual property rights resulting from Seller’s compliance with Buyer’s specifications; or (iii) any personal injuries or property damage sustained or allegedly sustained by any person (including, but not limited to, Seller’s agents and employees) as a result of Buyer’s acts, omissions or misconduct; or (iv) Buyer’s or any third party’s failure to test and determine the suitability of any goods for Buyer’s or any other intended use; or (v) Buyer’s or any third-party’s misuse or failure to use any goods in a manner that does not conform to the applicable goods specifications or to the requirements of any applicable federal, state or local law or requirement; or (vi) any third-party claims asserted against Seller as a result of Buyer’s or any other third-party’s use of any goods purchased hereunder; or (vii) Buyer’s negligence or willful misconduct. The provisions of this paragraph shall survive the delivery of and payment for all goods under this Agreement and shall apply notwithstanding the acts and/or omissions of Seller. In addition, this indemnity specifically covers any claims that may be asserted by Buyer’s employees, and Buyer hereby expressly waives, for purposes of this indemnity only, any immunity it may have under any worker’s compensation or other law from liability for claims brought by Seller pursuant to this paragraph. Buyer’s indemnity obligations to Seller hereinabove shall not be limited by a limitation on the amount or type of damages, benefits or compensation payable by or for Buyer under worker’s compensation acts, disability benefit acts or other employee benefit acts on account of claims against Seller by an employee of Buyer or anyone employed directly or indirectly by Buyer or anyone for whose acts Buyer may be liable. In no event shall Buyer’s liability hereunder be limited to the extent of any insurance available to or provided by Buyer.
11. GOVERNING LAW: This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio, without regard to its conflicts of laws principles. Any and all disputes arising under this Agreement shall be resolved in a state or federal court of competent jurisdiction within Mahoning County, Ohio, and Buyer hereby irrevocably submits to the jurisdiction of any such court for the resolution of any and all disputes arising hereunder.
12. WAIVER OF BREACH AND SEVERABILITY: Any failure by Seller at any time, or from time to time, to enforce or require the strict keeping and performance by Buyer of any of the terms or conditions of this Agreement shall not constitute a waiver by Seller of a breach of any such terms or conditions, nor shall it affect or impair such terms or conditions in any way, or the right of Seller at any time to avail itself of such remedies as it may have for any such breach or breaches of such terms or conditions. A waiver of any of the terms or conditions hereof must be in writing and signed by Seller. Any such waiver shall not be deemed a continuing waiver, but shall apply solely to the instance to which the waiver is directed. If any terms or condition of this Agreement or portion thereof is rendered unenforceable under the law, all remaining terms and conditions not affected by such determination shall remain in full force and effect and shall be binding upon the parties hereto.
13. NO THIRD PARTY BENEFICIARIES: Except as otherwise provided in writing, nothing contained in this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than Buyer and Seller, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Buyer and Seller and not for the benefit of any other party.
14. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and shall inure to the benefit of the respective successors and assigns of both Seller and Buyer. Buyer shall not, however, assign this Agreement or any part thereof or the goods hereunder without the prior written consent of Seller, which consent Seller may grant or withhold in its sole and absolute discretion.
SERVICE ORDER PROVISIONS
The following provisions, in addition to the foregoing provisions when applicable, apply to service orders:
15. Buyer is responsible for ensuring equipment is in a serviceable condition and complies with applicable laws and manufacturer requirements. Buyer must disclose known defects, hazards, prior modifications, or operational issues. Seller is not responsible for pre-existing defects, normal wear and tear, or failures outside the serviced scope. Seller may refuse or suspend Services if conditions are unsafe.
16. Replacement parts may be new, reconditioned, or equivalent, unless otherwise specified. Title to parts transfers upon full payment. Any removed parts may be retained by Seller unless Buyer requests otherwise in writing.
17. If Buyer fails to pay any invoice within thirty (30) days of the due date, and the equipment is in the possession of Seller, the equipment shall be deemed abandoned by Buyer. Upon abandonment:
1. Storage Fees: Seller may charge reasonable storage, handling, and administrative fees from the date payment became overdue.
2. No Obligation to Store: Seller shall have no obligation to continue storing or safeguarding the equipment.
3. Disposition Rights: Seller may, at its sole discretion and without further notice, sell, recycle, dispose of, or otherwise transfer the equipment in a commercially reasonable manner.
4. Application of Proceeds: Any proceeds from sale or disposal may be applied to outstanding balances, including service charges, storage fees, and disposal costs.
5. Deficiency: Buyer remains liable for any remaining balance after such application.
6. Release of Liability: Seller shall not be liable for loss, damage, or depreciation of abandoned equipment.
7. Waiver of Claims: Buyer waives any claim against Seller arising from the disposition of abandoned equipment, to the fullest extent permitted by law.