ORDERS

Purchase Orders. Retail Merchant shall order Goods by written or electronic notice to Company.  Each order shall specify the number of Goods to be shipped, the type of Goods to be shipped, and the desired method of shipment. For clarification purposes, Company may insert in orders received from Retail Merchant ministerial clarification matters such as the prices of the Goods, their particular descriptions, including numbers and distinguishing characteristics.  Retail Merchant agrees to be bound by such details as though they were contained in the orders at the time Retail Merchant signed them.

Acceptance.  An order from Retail Merchant shall be considered  accepted by Company when acknowledgment of receipt of the order is given by Company to Merchant, or if no acknowledgment is given then when shipment is made.

Cancellation.  An order from Retail Merchant that is accepted by Company shall not be subject to cancellation by Retail Merchant without the written approval of the Company. 

Minimum.  Minimum invoice value is $50 net.  Orders received below that amount will be processed and billed the minimum charge of $50. 

Size.  Orders will be in standard package quantities as time to time set for each product by Company.

PRICING

Pricing of Goods to Retail Merchant.    Retail Merchant shall pay Company for Goods purchased pursuant to this contract according to the pricing agreement in effect between Company and Retail Merchant at the time Retail Merchant’s order is accepted by Company.   All prices stated are F.O.B. shipping point.  Retail Merchant shall bear all costs of transportation and insurance and will promptly reimburse Company if Company prepays or otherwise pays for such expenses.

List Price.   The List Price of the Goods shall be as from time to time posted on this website.   Company will endeavor to give Distributor advance notice of price changes.

Reserved Right of Sale.  Retail Merchant shall not sell to the armed forces, which sales and relations are reserved to the Company.

DELIVERY

Shipment. All shipments of Goods shall be made F.O.B. shipping point and liability for loss or damage in transit, or thereafter, shall pass to Retail Merchant upon Company's delivery of Goods to a common carrier for shipment. Shipping dates are approximate and are based, to a great extent, on prompt receipt by Company of all necessary ordering information from Retail Merchant. Company agrees to ship Goods to Retail Merchant as close as possible to the delivery schedule set forth in each order as accepted by Company, unless Company otherwise indicates in writing.  Company shall make every effort to, but shall not be liable for failure to, honor any order which: (a) specifies a shipping date earlier than Company's then current delivery schedule for the date such order is received by Company and/or (b) specifies a quantity to be delivered in any one month within the current delivery schedule which is greater than one hundred percent (100%) of the total quantity shipped in the preceding sixty (60) day period.

Taxes.   Prices do not include federal, state or local taxes applicable to the Goods sold under this contract. In any international sales, applicable Import and export taxes and duties shall be for the account of Retail Merchant.  An amount equal to the appropriate taxes will be added to the invoice by the Company where the Company has the legal obligation to collect such taxes. Retail Merchant shall pay such amount to the Company unless Retail Merchant provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.  Any gross receipts taxes assessable by Retail Merchant’s state in lieu of sales taxes shall be for the account of Retail Merchant. Risk of loss and  title  pass when Goods are loaded.

Title to Goods. The Company hereby reserves a purchase money security interest in the Goods sold or to be sold under this contract and in the proceeds thereof, if Retail Merchant shall have sold the Goods to another party prior to Retail Merchant paying Company the purchase price for such Goods as set forth herein, in the amount of such Good's purchase price. These interests will be satisfied by payment in full. A copy of this contract may be filed with the appropriate authorities at any time after the signature by the Company as a financing statement in order to perfect the Company's security interest.  On the request of the Company, Retail Merchant shall execute UCC financing statement(s) and other instruments the Company shall desire to perfect a security interest in the Goods for its purchase price, and Retail Merchant appoints Company its attorney-in-fact to execute such instruments.

Goods Acceptance. The Goods shall be deemed accepted by Retail Merchant if at the time of delivery Retail Merchant does not report to Company in writing that the Goods do not conform to the product description on Retail Merchant’s Purchase Order to Company.

Delays in Delivery; Force Majeure.  Company shall not be liable for or in default of this contract by reason of any delay attributable to any cause, circumstance, or contingency beyond its control or the control of its suppliers or Company’s which prevents or impedes manufacture, supply, or delivery to Retail Merchant by Company whether directly or indirectly.  Such causes, circumstances, and contingencies shall include, but not be limited to:   inability to obtain material, supplies or services in the normal course of business;  accidents; fire; explosion; strikes, lockouts, or other labor problems; freight embargo; gas or petroleum product shortage or embargo; act of God or of the public enemy; war; riots; civil disturbance; act of any government, de jure or de facto, or agency or official thereof; material or labor shortage; transportation contingencies; unusually severe weather; default of any other Company or a supplier or subcontractor; quarantine, restriction, epidemic; catastrophe; restraints affecting shipment or credit; non-arrival or delay of carriers;  lack of timely instructions or essential information from Retail Merchant; inadequate or reduced supply or excessive cost of suitable raw materials, transportation or production facilities;  or otherwise arising out of causes beyond the reasonable control of the Company. Nor shall the Company at any time be liable for any incidental, special or consequential damages. Company shall not be liable for fines, penalties, damages or offsets arising out of or relating to illegible, unscannable, or unworkable UPC bar codes on Goods.    Delays in delivery attendant to same shall not entitle Retail Merchant to terminate this contract, terminate or not honor any Purchase Order, or collect damages for same.   In the event of such default or delay, the date for shipment shall be extended correspondingly. Company may make delivery on an equitable basis with reference to all its Retail Merchants and buyers. No orders may be cancelled unless acceptable to Company.   If payment is to be made by letter of credit and if the letter of credit should expire prior to the date of completion of the products, Retail Merchant shall extend the letter of credit promptly on terms acceptable to Company, or shall otherwise assure full and prompt payment in a manner acceptable to Company. 

PAYMENT

Net 30 Days. Terms are net thirty (30) days from date of delivery where satisfactory credit is established, otherwise terms are payment upon placement of order.

·        Payment in full within 15 (fifteen) days of delivery, 1% discount.

·        Payment in full within 10 (ten) days of delivery, 2% discount.

All payments shall be made in U.S. Dollars, unless otherwise agreed in prior writing.  Retail Merchants not based within the fifty states of the United States shall make payments under this contract by certified irrevocable letter of credit guaranteed by a U.S. bank, or upon such other terms as may be determined in advance by mutual agreement. Company reserves the right to revoke any credit extended at the Company's sole discretion.  Retail Merchant agrees to pay such invoices when due regardless of other scheduled deliveries. Invoices not paid within thirty (30) days of the invoice date will have one and one-half percent (1.5%) per month finance charge assessed against the unpaid balance from the original date of invoice until the date of payment. All expenses incurred by Retail Merchant shall be paid by Retail Merchant.

MUTUAL RESPONSIBILITIES

Retail Merchant Responsibilities.   Retail Merchant shall use its best efforts to perform the following duties:

• Honor Company’s Warranty on behalf of Company, and return the defective Goods to Company.  Company will credit or resupply Retail Merchant in equal number to Goods upon which Retail Merchant has honored warranty requests.

·        Truthfully represent Company Goods.

·        Refrain from modifying Company Goods.

·        To the extent that Retail Merchant tracks such data, provide to Company on a periodic basis the demographics of customers buying the Goods, sales information, and returns information. Company shall have the right to use any such information obtained from Retail Merchant for any legal purpose.

Company Responsibilities. Company shall use its best efforts to perform the following duties:

·        Warrant to Retail Merchant (not subsequent purchasers, whose warranty is stated elsewhere herein) that the Goods purchased by Retail Merchant meet the following warranty of merchantability:

(a)     pass without objection in the trade

(b)     are of fair average quality

(c)      are fit for ordinary purposes

(d)     are of even kind, quality and quantity

(e)     are adequately contained, packaged and labeled

(f)        conform to the product description on Retail Merchant’s Purchase Order to Company.

·        Supply the Goods requirements of Retail Merchant.

·        Assure that the Goods conform to the warranties set forth herein.

·        Reimburse or re-supply Retail Merchant for Goods upon which Retail Merchant has honored Company’s warranty on behalf of Company.

·        Provide downloadable product literature and product information on this website which Retail Merchant may access and use for free.

WARRANTIES

Goods Title Warranty. Company warrants that the Goods purchased by Retail Merchant hereunder shall be free and clear of all liens and encumbrances except for Company's purchase money security interest therein.

Limited Goods Warranty.  Warranties do not extend beyond the original end user.   Company warrants that the parts are free from defects in material and workmanship under normal use and service for a period of  one year  from the date of  delivery to the original end user. ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS ARE LIMITED TO THE SAME PERIOD.  Claimant must furnish proof of date of purchase or installation. Company will provide a replacement part,  or may opt to reimburse the purchase price if that is infeasible. Company’s  sole liability with respect to any defect shall be for the replacement of the defective part(s).  No one is authorized to make any other warranties on behalf of Company, or modify this warranty. Company will not  be liable for any pipe, valve, or line repair or replacement as a result or removing or replacing any Goods; going to an end-user’s location  to teach them how to use the product; repairing damaged or failure caused by acts of God, abuse, faulty installation or removal,  abnormal usage,  use or application for which the product is not intended.  The foregoing shall constitute Company’s sole warranty and sole liability, and is in lieu of any other warranties whether written, oral, implied, or statutory.  Some states and provinces do not allow the limitation of  exclusion or limitation or incidental or consequential damages and some states do not allow limitations on how long an implied warranty lasts, so the limitations or exclusions may not apply.  This warranty gives its beneficiaries specific legal rights, and beneficiaries may have other rights which vary from state to state and province and province.  COMPANY WILL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCT OR OTHER INDIRECT DAMAGES WITH RESPECT TO LOSS OF PROPERTY, REVENUES, LIFE OR LIMB, PERSONAL INJURY, OR THE COST OF REMOVAL, INSTALLATION, OR REINSTALLATION, AND RETAIL MERCHANT’S REMEDIES SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF NONCONFORMING UNITS OR PARTS.

PROPRIETARY RIGHTS

Authorized Use of Company Name and Logos by Retail Merchant.  Company authorizes Retail Merchant's use of  all slogans, ads, logos, and graphics developed by Company and provided to Retail Merchant, found from time to time on the Company’s website (snapmarkers.com), or created by Company in the future.   Retail Merchant will, on termination of this contract, or upon request of Company, discontinue the use of the above and thereafter will not use the same either directly or indirectly in connection with its business or expressions so nearly resembling the same as would likely lead to confusion or uncertainty, or to deceive the public.

Patent Indemnity by Company. Company agrees, at its own expense, to indemnify, defend and hold harmless Retail Merchant from and against expense, damage, cost and loss and to satisfy all judgments and decrees resulting from a claim, suit or proceeding insofar as it is based upon an allegation that the Goods or any part thereof furnished by Company is or has been infringing upon any U.S. patent, U.S. copyright or U.S. proprietary right, provided that Company is notified within ten (10) calendar days of such claim in writing and given authority, and full and proper information and assistance for the defense of same.  In case the Goods, or any part thereof, in such suit are held to constitute an infringement and the use of said Goods or part is enjoined, Company shall, in its sole discretion and at its own expense, have the option as the sole remedy due from Company, to (a)  procure for Retail Merchant the right to continue using said Goods, (b) modify the Goods so that they become non-infringing, or (c) refund the purchase price less depreciation.   Company has no duty to indemnify Retail Merchant, and Retail Merchant shall indemnify Company (including attorneys fees), if the claimed infringement is a result of (a) Retail Merchant’s detailed specifications, (b) parts supplied by Retail Merchant, (c) modification of the Goods by someone other than Company, or (d) Retail Merchant’s combination of Company’s products with other products.

Drawings and Data.  The Company retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to Goods specified in the contract and to all discoveries inventions, patent rights, etc., arising out of work done in connection with the contract and to any and all Goods developed as a result thereof, including the sole right to manufacture any and all such products.  Retail Merchant shall not contact the Company's suppliers, or any other person, for the purpose of manufacture.

Intellectual Property Rights Reserved.   Retail Merchant acknowledges that the Goods and intellectual property rights pertaining to the Goods, and associated Tradenames are the property of Company, and that the products are being made available to Retail Merchant in confidence and solely on the basis of its confidential relationship to Company for the purposes of retail sales. 

Trade Secrets; Confidential Business Information.  Retail Merchant shall not misappropriate or wrongfully disclose confidential business information of Company including pricing of Goods, product plans, or designs.

GENERAL MATTERS

Construction.   Regardless that this contract was initially drafted by Company, the parties agree that any ambiguity herein shall not be construed by the parties or courts against Company because the parties mutually negotiated and if desired  edited and revised, this Contact during their business discussions leading to its execution.

Notice or Communication. Any notice or communication required or permitted hereunder (other than routine administrative notices) shall be in writing and shall be sent by registered mail, return receipt requested, postage prepaid and addressed to the addresses of the Retail Merchant and Company as shown on the  Retail Merchant Agreement signed between them or in the absence of same, to the addresses to which they have customarily sent papers to one another.

Relationship of Parties. Retail Merchant is an independent contractor and not an employee, franchisee, joint venture, partner or owner of the Company, and vise-versa.   The relationship between the parties established by this contract shall be solely that of vendor and vendee and all rights and powers not expressly granted to the Retail Merchant are expressly reserved to the Company.

Independence of Parties. Nothing contained in this contract shall be construed to make the Retail Merchant or Company an agent for each other for any purpose, and neither party hereto shall have any right whatsoever to incur any liabilities or obligations on behalf or binding upon the other party.  

Limitation on Authority. Retail Merchant has no authority to act or hold itself out as an agent, employee or joint venturer of the Company, to execute contracts for or on behalf of Company, or to bind Company in any way.  Retail Merchant shall at the outset dis­close this fact to relevant parties with whom Retail Merchant deals.  Retail Merchant has no legal authority and shall not enter into any agreement or arrangement with any person, customer or potential customer purporting to impose any legal obligation or liability on Company.   Retail Merchant will not at any time represent to any person that it has the right, power or authority to act for or bind the Company.

Gender; Plural.  The singular includes the plu­ral, and the masculine includes the feminine, wherever necessary to effectuate the intent of this Contract.

Governing Law and Venue.  This contract situs is established in the State of Florida in the United States of America.  All claims, causes or action at law or equity arising out of this contract or the Goods contained herein,  and all questions concerning the meaning, intention, interpretation, performance or en­forcement or validity of the terms of this contract, shall be judged and resolved in accordance with the laws of the State of Florida in the United States of America and venue for all such matters shall be in the State of Florida.

Language of Construction.  This contract is written in American English, and American English shall be the language employed to construe this contract and resolve any conflict or unclarity herein. 

Headings.  The headings above the various provi­sions herein are to make it easier to locate the subject matter covered by various provisions, and are not to be used in ascertaining or construing the intent of the parties or the substantive content of a paragraph.  

Invalid, Unenforceable, or Illegal Provisions.  Should any provision of this contract be, become, or be declared  invalid, unenforceable, or illegal, the remaining provisions shall be and continue in full force and effect, and the invalid, unenforceable or illegal provision shall be construed to the maximum extent possible to effectuate its intent and the intent of the rest of the contract.  In the event a provision is invalid, illegal, or unenforceable, under law at any given time, it shall not be permanently stricken but rather shall be suspended, and in the event that a later change in the law makes that provision valid, legal or enforceable, then that provision automatically come back into full force and effect contemporaneously with said change in the law.

Attorneys Fees and Costs.   In connection with any dispute arising out of this contract, the prevailing party is entitled to recover its attorney's fees, expert witness fees, discovery costs, investigative fees and costs, travel expenses, and court costs in trial court, in appellate courts, in bankruptcy courts,  and in any arbitration to which Company might agree.   The prevailing party is entitled to actual attorney's fees and costs for the perfection, establishment, enforcement and collection of any judgment, decree, or order rendered in favor of Company both throughout Florida, the United States of America, and in any foreign state, nation, or any political subdivision thereof or therein.

Corporate Entity; Release.    Retail Merchant and Company acknowledge and agree that they are each dealing with the other’s corporate entity in this contract,  and  that the persons who represent those corporations act on behalf of the corporation in their corporate capacities and not in their personal capacity.   This provision is fundamental to this contract and therefor in consideration for entering into this contract Retail Merchant and Company each release and discharge the other’s corporate officers, directors, shareholders, employees, suppliers, of and from any and all rights, claims, damages, demands, actions, causes of action, or suits in equity, of wha­tever kind or nature, and whether accruing now or in the future, and whether known or unknown to the parties, arising out of or relating this contract.   Without limitation, this release as to individual liability extends to the following grounds:  failure to clearly indicate a corpo­rate capacity;  failure to observe corporate formalities;  transfer of corporate assets for  personal use;  corporate capitalization;  non-filing of a corporate annual return or uniform business report with their respective states;  depletion of corporate assets for personal benefit; treating the corporation and an officer of director interchangeably or as an alter ego;  tort; indemnification.

Entire contract.  This contract consti­tutes the entire agreement between Retail Merchant and Company,  and all prior and contemporaneous oral and written statements, promises, agreements, and understandings are incorporated herein, and no such agreements or representations are binding unless set forth herein.   Any provisions of Retail Merchant's Purchase Orders which might in any way contradict, supplement, or be in addition to those in this Contract, shall not be part of the contract between the parties, shall be deemed stricken,  and shall have no applicability to the sale of Goods by Company to Retail Merchant. Acceptance of these terms is evidenced by Retail Merchant’s signature on the shipment bill of lading or our purchase order, or payment,  or physical acceptance of any of the Goods from the carrier.

Modification.  No person, employee, agent, sales representative, distributor, or retail merchant has the authority to verbally or in writing modify, waive or alter, this Contract. No change or modification of this Contract shall be valid unless the same is herein posted on this website, or is set forth in a separate written paper document signed by an officer of SnapMark, Inc. listed as an officer with the Florida Department of State (see www.dos.state.fl.us/).   No other person has the actual authority to modify this Contract, and all apparent authority to do so is hereby publicly disavowed.

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