TERMS AND CONDITIONS
1. Applicability.
(a) These terms and conditions of sale (these “Terms”) are the only terms that
govern the sale of the goods (“Goods”) by Heritage Hard Assets, LLC (“Seller”) to the
recipient of the enclosed Goods (“Buyer”). Notwithstanding anything herein to the
contrary, if a written contract signed by both parties is in existence covering the sale of
the Goods covered hereby, the terms and conditions of said contract shall prevail to the
extent they are inconsistent with these Terms. By accepting delivery of the Goods, Buyer
agrees and assents to these Terms.
(b) The invoice that references these Terms (the “Sales Confirmation” and
these Terms (collectively, this “Agreement”) comprise the entire agreement between the
parties, and supersede all prior or contemporaneous understandings, agreements,
negotiations, representations and warranties, and communications, both written and oral.
These Terms prevail over any of Buyer’s general terms and conditions of purchase
regardless of whether or when Buyer has submitted its purchase order or such terms.
Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and
conditions and does not serve to modify or amend these Terms.
2. Delivery.
(a) The goods will be delivered within a reasonable time after the receipt of
Buyer’s purchase order. Seller shall not be liable for any delays, loss, or damage in
transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the
Goods to the address provided by you (the “Delivery Point”) using Seller’s standard
methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods
upon receipt of the package containing the Goods or Seller’s written notice that the
Goods have been delivered to the Delivery Point, whichever is sooner. Buyer shall be
responsible for all loading costs and provide equipment and labor reasonably suited for
receipt of the Goods at the Delivery Point.
(c) Seller may, in its sole discretion, without liability or penalty, make partial
shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer
shall pay for the units shipped whether such shipment is in whole or partial fulfillment of
Buyer’s purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the
date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery
Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date
because Buyer has not provided appropriate instructions, documents, licenses or
authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be
deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until
Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses
(including, without limitation, storage, and insurance).
3. Non-Delivery.
(a) The quantity of any installment of Goods as recorded by Seller on dispatch
from Seller’s place of business is conclusive evidence of the quantity received by Buyer
on delivery unless Buyer can provide conclusive evidence proving the contrary.
(b) The Seller shall not be liable for any non-delivery of Goods (even if
caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-
delivery within 2 days of the date when the Goods would in the ordinary course of events
have been received.
(c) Any liability of Seller for non-delivery of the Goods shall be limited to
replacing the Goods within a reasonable time or adjusting the invoice respecting such
Goods to reflect the actual quantity delivered.
4. Quantity. If Seller delivers to Buyer a quantity of Goods of up to 0% more or less
than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or
reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for
such Goods the price set forth in the Sales Confirmation adjusted pro rata.
5. Shipping Terms. Seller shall make delivery in accordance with the terms on the
face of the Sales Confirmation.
6. Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the
Goods at the Delivery Point. As collateral security for the payment of the purchase price of the
Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title
and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or
hereafter arising or acquired from time to time, and in all accessions thereto and replacements or
modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
The security interest granted under this provision constitutes a purchase money security interest
under the Florida Uniform Commercial Code.
7. Amendment and Modification. These Terms may only be amended or modified in
a writing which specifically states that it amends these Terms and is signed by an authorized
representative of each party.
8. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods upon receipt and shall have twenty-four
hours from such receipt to conduct such inspection (“Inspection Period”). Buyer will be
deemed to have accepted the Goods unless it notifies Seller in writing of any
Nonconforming Goods during the Inspection Period and furnishes such written evidence
or other documentation as reasonably required by Seller. “Nonconforming Goods”
means only the following: (i) product shipped is different than identified in Buyer’s
purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall,
in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or
(ii) credit or refund the Price for such Nonconforming Goods, together with any
reasonable shipping and handling expenses incurred by Buyer in connection therewith.
Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s
facility. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after
receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense
and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b)
are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as
provided under Section 8(b) , all sales of Goods to Buyer are made on a one-way basis
and Buyer has no right to return Goods purchased under this Agreement to Seller.
9. Price.
(a) Buyer shall purchase the Goods from Seller at the price (the “Price”) set
forth in Seller’s published price list in force as of the date of Buyer’s purchase order.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other
similar taxes, duties, and charges of any kind imposed by any Governmental Authority on
any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and
taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with
respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal
property or other assets.
10. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s
invoice. Buyer shall make all payments hereunder by wire transfer, check, or credit/debit
card, and in US dollars.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of
10% per month or the highest rate permissible under applicable law, calculated daily and
compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting
any late payments, including, without limitation, attorneys’ fees. In addition to all other
remedies available under these Terms or at law (which Seller does not waive by the
exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any
Goods if Buyer fails to pay any amounts when due hereunder and such failure continues
for 3 days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by
reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s
breach, bankruptcy, or otherwise.
11. No Warranty. SELLER MAKES NO WARRANTY WHATSOEVER WITH
RESPECT TO THE GOODS, INCLUDING ANY ( a ) WARRANTY OF
MERCHANTABILITY OR ( b ) WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE OR (c) WARRANTY OF ANY QUALITY, RATING, GRADING OR
OTHERWISE WITH RESPECT TO THE GOODS, REGARDLESS OF WHETHER
SUCH GOODS ARE MARKETED, SOLD, OR DESCRIBED AS HAVING A RATING,
QUALIFICATION, GRADING, OR OTHERWISE BY ANY GRADING OR RATING
AGENCY, INCLUDING BUT NOT LIMITED TO NUMISMATIC GUARANTY
CORPORATION OR PROFESSIONAL COIN GRADING SERVICE; WHETHER
EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF
PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
12. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY
THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF
DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL,
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE
DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF
WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR
NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR
OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER
ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF
THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER
OR $10,000, WHICHEVER IS LESS.
(c) The limitation of liability set forth in Section 12(b) above shall not apply
to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death
or bodily injury resulting from Seller’s acts or omissions.
13. Compliance with Law. Buyer shall comply with all applicable laws, regulations,
and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations,
consents, and permits that it needs to carry out its obligations under this Agreement.
14. Termination. In addition to any remedies that may be provided under these Terms,
Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if
Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise
performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent,
files a petition for bankruptcy or commences or has commenced against it proceedings relating to
bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. Waiver. No waiver by Seller of any of the provisions of this Agreement is
effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or
delay in exercising, any right, remedy, power, or privilege arising from this Agreement operated or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy,
power, or privilege hereunder precludes any other or further exercise thereof or the exercise of
any other right, remedy, power, or privilege.
16. Confidential Information. All non-public, confidential or proprietary information
of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings,
documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by
Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other
form or media, and whether or not marked, designated or otherwise identified as “confidential”
in connection with this Agreement is confidential, solely for the use of performing this
Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing.
Upon Seller’s request, Buyer shall promptly return all documents and other materials received
from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This
Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the
time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third
party.
17. Force Majeure. No party shall be liable or responsible to the other party, or be
deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling
or performing any term of this Agreement, when and to the extent such failure or delay is caused
by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control,
including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (
acts of God; ( flood, fire, earthquake, or explosion; ( war, invasion, hostilities (whether war is
declared or not), terrorist threats or acts, riot or other civil unrest; ( government order, law, or
action; ( embargoes or blockades in effect on or after the date of this Agreement; and ( national
or regional emergency. The Impacted Party shall give notice within 5 days of the Force Majeure
Event to the other party, stating the period of time the occurrence is expected to continue. The
Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such
Force Majeure Event are minimized. The Impacted Party shall resume the performance of its
obligations as soon as reasonably practicable after the removal of the cause. In the event that the
Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following
written notice given by it under this Section, the other party may thereafter terminate this
Agreement upon 3 days’ written notice.
18. Assignment. Buyer shall not assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of Seller. Any purported
assignment or delegation in violation of this Section is null and void. No assignment or
delegation relieves Buyer of any of its obligations under this Agreement.
19. Relationship of the Parties. The relationship between the parties is that of
independent contractors. Nothing contained in this Agreement shall be construed as creating any
agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary
relationship between the parties, and neither party shall have authority to contract for or bind the
other party in any manner whatsoever.
20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties
hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable
right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
21. Governing Law. All matters arising out of or relating to this Agreement are
governed by and construed in accordance with the internal laws of the State of Florida without
giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or
any other jurisdiction) that would cause the application of the laws of any jurisdiction other than
those of the State of Florida.
22. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or
relating to this Agreement shall be instituted in the federal courts of the United States of America
or the courts of the State of Florida in each case located in the City of Fort Lauderdale and
County of Broward, and each party irrevocably submits to the exclusive jurisdiction of such
courts in any such suit, action, or proceeding.
23. Notices. All notices, requests, consents, claims, demands, waivers, and other
communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at
the addresses set forth on the face of the Sales Confirmation or to such other address that may be
designated by the receiving party in writing. All Notices shall be delivered by personal delivery,
nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of
transmission), or certified or registered mail (in each case, return receipt requested, postage
prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon
receipt of the receiving party, and (b) if the party giving the Notice has complied with the
requirements of this Section.
24. Severability. If any term or provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect
any other term or provision of this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction.
25. Survival. Provisions of these Terms which by their nature should apply beyond
their terms will remain in force after any termination or expiration of this Agreement including,
but not limited to, the following provisions: Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
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