These Terms and Conditions constitute a binding
contract between Customer and Seller and are referred to herein as either "Terms
and Conditions" or this "Agreement". These Terms and Conditions are subject to
change without prior notice, except that the Terms and Conditions posted on the
Site at the time Customer places an order will govern the order in question,
unless otherwise agreed in writing by Seller and Customer. Customer accepts
these Terms and Conditions by making a purchase from or placing an order with
Seller or otherwise requesting products (the "Products"). Customer consents to
receiving electronic records, which may be provided via a Web browser or e-mail
application connected to the Internet. Electronic signatures (or copies of
signatures sent via electronic means) are the equivalent of written and signed
documents.
Customer may issue a purchase order for administrative purposes only. Additional
or different terms and conditions contained in any such purchase order will be
null and void. This Agreement contains the entire understanding of the parties
with respect to the matters contained herein and supersedes and replaces in its
entirety any and all prior communications and contemporaneous agreements and
understandings, whether oral, written, electronic or implied, if any, between
the parties with respect to the subject matter hereof.
THESE TERMS AND CONDITIONS, AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN MORRIS COUNTY, NEW JERSEY AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided Seller under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or at equity.
For all shipments, title to Products and risk of loss or damage during shipment pass from Seller to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and Customer's rights therein are contained in the license agreement between such licensor(s) and Customer.
Payment
Orders are not binding upon Seller until
accepted by Seller. Terms of payment are within Seller's sole discretion.
Customer agrees to pay the total purchase price for the Products plus shipping
(to the extent shipping is not prepaid by Customer), including shipping charges
that are billed to Seller as a result of using Customer's carrier account
number. Invoices are due and payable within the time period specified on the
invoice, measured from the date of invoice, subject to continuing credit
approval by Seller. Seller, or any of its Affiliates on behalf of Seller may
issue an invoice to Customer. Seller may invoice Customer separately for partial
shipments. Customer agrees to pay interest on all past-due sums at the lower of
one and one-half percent (1.5%) per month or the highest rate allowed by law.
Customer will pay for, and will indemnify and hold Seller and its Affiliates
harmless from, any applicable sales, use, transaction, excise or similar taxes
and any federal, state or local fees or charges (including, but not limited to,
environmental or similar fees), imposed on, in respect of or otherwise
associated with the Products. Customer must claim any exemption from such taxes,
fees or charges at the time of purchase and provide Seller with the necessary
supporting documentation. In the event of a payment default, Customer will be
responsible for all of Seller’s costs of collection, including, but not limited
to, court costs, filing fees and attorneys’ fees. In addition, if payments are
not received as described above, Seller reserves the right to suspend Services
until payment is received.
Export Sales
Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. If this transaction involves an export of items (including, but not limited to, commodities, software or technology) subject to the Export Administration Regulations, such items were exported from the United States by Seller in accordance with the Export Administration Regulations. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers' warranties for exported Products may vary or may be null and void for Products exported outside the United States.
Pricing Information; Availability Disclaimer
Seller reserves the right to make adjustments to pricing for its Product offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability. Therefore, Seller cannot guarantee that it will be able to fulfill Customer’s orders.
Return Privileges
To obtain Seller's return policy, Customer should contact COLOTRAQ at 1 Gatehall Drive Parsippany Suite 208 , New Jersey 07054. Customer must notify COLOTRAQ of any damaged Products within ten (10) days of receipt.
Warranties
Customer understands that Seller is not the
manufacturer of the Products purchased by Customer hereunder and the only
warranties offered are those of the manufacturer, not Seller or its Affiliates.
In purchasing the Products, Customer is relying on the manufacturer’s
specifications only and is not relying on any statements, specifications,
photographs or other illustrations representing the Products that may be
provided by Seller or its Affiliates. SELLER AND ITS AFFILIATES HEREBY EXPRESSLY
DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY
WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS
PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY. Customer
expressly waives any claim that it may have against Seller or its Affiliates
based on any product liability or infringement or alleged infringement of any
patent, copyright, trade secret or other intellectual property rights (each a
“Claim”) with respect to any Product and also waives any right to
indemnification from Seller or its Affiliates against any such Claim made
against Customer by a third party. Customer acknowledges that no employee of
Seller or its Affiliates is authorized to make any representation or warranty on
behalf of Seller or any of its Affiliates that is not in this Agreement.
Any shipping dates or completion dates provided by Seller or any purported
deadlines contained in a proposal or any other document are estimates only
Seller will not be responsible for and no liability shall result to Seller or
any of its Affiliates for any delays in delivery or in performance which result
from any circumstances beyond Seller’s reasonable control, including, but not
limited to, product unavailability, carrier delays, delays due to fire, severe
weather conditions, failure of power, labor problems, acts of war, terrorism,
embargo, acts of God or acts or laws of any government or agency.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SELLER, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SELLER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; (C) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SELLER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $50,000.00.
Arbitration
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Products, the interpretation or application of these Terms and Conditions or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions, or Seller's or any of its Affiliates' advertising or marketing (collectively, a "Claim") WILL BE RESOLVED, UPON THE ELECTION OF ANY OF SELLER, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither Seller nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Morristown, New Jersey. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Seller arising out of the Products will be exclusively litigated in court rather than through arbitration. The existence or results of any arbitration will be treated as confidential.
Miscellaneous
Seller may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or assign the right to receive payments, without Customer's consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Seller. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and insure to the benefit of the parties hereto and their successors and assigns. If any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.