Terms and Conditions
Description of Goods
Air Freshener Marketing, LLC, a Colorado limited liability company (“Air Freshener Marketing”), shall transfer ownership and deliver possession to Purchaser, and Purchaser shall pay for and accept the air fresheners and other goods described in the Mock-Up and Order Form (“Purchase Order”), which is incorporated herein by reference (the “Goods”).
Purchaser agrees to indemnify, defend and hold harmless Air Freshener Marketing and its managers, members, agents, employees, and insurers from and against all claims, demands, causes of action, liabilities, damages, losses and/or expenses of every kind and nature, including without limitation, attorneys’ fees, arising out of, caused by, resulting from, contributed to, aggravated by, or related to the sale, use, or operation of the Goods to the extent permitted by law.
Purchaser agrees to pay the total purchase price and other amounts due in accordance with the terms of the Purchase Order. All payments are to be made prior to production of the Goods in United States Dollars by debit/credit card, wire transfer, certified check, personal check or as otherwise agreed upon by Purchaser and Air Freshener Marketing. If any payment is not received as called for, all amounts due and owing will bear interest from that date at a rate of eighteen percent (18%) per annum compounded annually.
Delivery of Goods
Air Freshener Marketing shall use reasonable business efforts to cause the Goods to be delivered in accordance with the Purchase Order and these Terms and Conditions. Air Freshener Marketing’s obligation to deliver the Goods is subject to delays incident to labor difficulties, fires, casualties and accidents, acts of the elements, acts of God, transportation difficulties, delays by a common carrier, inability to obtain Goods, materials or components or qualified labor sufficient to timely manufacture the Goods, government regulations or other causes and acts of force majeure beyond the control of Air Freshener Marketing. In the event of such delays, the delivery of the Goods shall be correspondingly extended and Air Freshener Marketing shall keep Purchaser informed of the effects of such events.
Delivery of the Goods shall be F.O.B. Purchaser’s place of business or indicated destination. Delivery shall be made by a common carrier designated by Air Freshener Marketing and shall be arranged and made at Air Freshener Marketing’s direction. Risk of loss shall be on Air Freshener Marketing until tender of delivery.
Unless agreed upon in writing prior to entering into the Purchase Order, Purchaser acknowledges and agrees that air freshener scents are placed on the exterior of the shipping container.
Storage of Goods
Purchaser understands packaged air fresheners may begin to lose fragrance within approximately six (6) months following delivery. Purchaser agrees to store the Goods in a cool and dry place and to: (1) make all reasonable efforts to ensure the Goods avoid contact with all surfaces and (2) hang freely. Purchaser further agrees that Air Freshener Marketing is not responsible for any diminution in fragrance or loss caused by the passage of time or Purchaser’s failure to adhere with this Paragraph.
Purchaser Error and Omission
Purchaser understands that Air Freshener Marketing custom manufactures the Goods based on information provided and uploaded into the Purchase Order by Purchaser. Purchaser agrees that Air Freshener Marketing is not responsible for any loss caused by Purchaser error or omission, including without limitation, spelling errors, omission of words, and incorrect dates or color selection. Purchaser further agrees that such Purchaser error or omission shall not constitute a non-conformity of the Goods and that Purchaser may not reject the Goods on that basis alone.
Printing and Color Match
Purchaser understands that Air Freshener Marketing utilizes the CYMK (Cyan, Magenta, Yellow and Black) color format in the manufacturing and printing process. Purchaser acknowledges that Air Freshener Marketing will use all reasonably practicable measures to ensure color match of the Goods pursuant to the CYMK color format, but that Air Freshener Marketing cannot and will not guarantee exact color match. Purchaser agrees that lack of an exact color match shall not constitute a non-conformity of the Goods and that Purchaser may not reject the Goods on that basis alone.
Disclaimer of Warranties
The goods are sold "as is" "with all faults" and with no warranty, expressed or implied.
Air Freshener Marketing makes no warranty of the mechantability for the goods and the purchaser agrees to accept the goods without any warranty of merchantability.
Air Freshener marketing makes no warranty of fitness for any particular purpose with respect to the goods.
Right of Inspection
Purchaser shall have the right to inspect the Goods at the time and place of delivery and will be deemed to have accepted the Goods immediately after such inspection. If Purchaser fails to inspect the Goods at the time of delivery, Purchaser shall be deemed to have waived the right to inspect the Goods. After Purchaser has inspected the Goods or the right of inspection has been waived, Purchaser shall not be permitted to revoke acceptance or later reject the Goods for any reason.
Rejection of Non-conforming Goods
Rejection of the Goods for failure to conform to the Purchase Order must be made at the time of inspection but in no event no later than seven (7) days after delivery of the Goods. Purchaser must send written notification of its rejection to Air Freshener Marketing. The notice must state the basis of the alleged non-conformity of Goods and describe any portion or part being rejected. If the Purchaser fails to timely make a rejection of the Goods as provided in this Purchase Order, Purchaser shall not be permitted to revoke acceptance or later reject the Goods for any reason.
Procedure as to Rejected Goods
On receipt of notification of rejection, Air Freshener Marketing will arrange for the return shipment of the Goods, at its expense. However, within thirty (30) days of receipt of notice of rejection Air Freshener Marketing may have an agent inspect the Goods for non-conformity; otherwise, inspection will be made upon return to the Air Freshener Marketing. If the Goods are confirmed by Air Freshener Marketing as non-conforming, Air Freshener Marketing will ship replacement conforming Goods within ninety (90) days of notice of rejection unless Purchaser notifies Air Freshener Marketing to forego the shipment before that date.
Modification and Rescission
Purchaser agrees all sales of the Goods are final upon completion of the Purchase Order. The Purchase Order may be modified or rescinded only in writing signed by both parties.
Exclusive Remedy of Purchaser
The exclusive remedy of Purchaser under the Purchase Order is, in the case of any breach by Air Freshener Marketing due to non-conforming Goods, replacement of the non-conforming Goods. Air Freshener Marketing shall not be responsible or liable to Purchaser for any loss or damage resulting from Air Freshener Marketing’s delivery of non-conforming Goods or delayed performance in delivering the Goods for any reason, including Purchaser’s loss of income or profits, and incidental, special or consequential damages to Purchaser.
Limitation of Consequential Damages
The parties agree that eliminating any award of consequential damages to any party aggrieved by breach of the Purchase Order is consistent with the intent of the parties and the commercial circumstances giving rise to the Purchase Order. Therefore, consequential damages, if any, may not be recovered by either party for any reason.
Governing Law, Venue and Jurisdiction
The Purchase Order and these Terms and Conditions shall be governed by and construed in accordance with Colorado law. Jurisdiction for any legal proceeding relating to or arising out of the Purchase Order and these Terms and Conditions, the transaction which the Purchase Order defines, or the Goods shall only be proper in the state courts of the State of Colorado. The parties consent to venue in Mesa County, Colorado. The parties waive the right to a jury trial in any lawsuit relating to or arising out of this Purchase Order, the transaction which it defines or the Goods.
The terms of the Purchase Order and these Terms and Conditions are intended by the parties as a complete and final expression of their agreement.
No claim or right arising out of a breach of the Purchase Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration, is in writing and is signed by the aggrieved party.
All notices required or permitted by the Purchase Order shall be in writing and personally delivered, emailed, or mailed by certified mail, return receipt requested, and addressed to the parties at their respective addresses.
The Purchase Order and these Terms and Conditions shall be binding on and inure to the benefit of its parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
In case any one or more of the provisions contained in the Purchase Order and these Terms and Conditions shall for any reason be held to be invalid, illegal or unenforceable in any respect, the invalidity, illegality or unenforceability shall not affect any other provision of the Purchase Order and these Terms and Conditions.
The parties waive any statutory or common law presumption which would serve to have the Purchase Order or of these Terms and Conditions construed in favor of or against Air Freshener Marketing or Purchaser in the event any dispute arises concerning the interpretation of the Purchase Order or these Terms and Conditions.
The captions contained herein are for convenience only and in no way define, limit or describe the scope or intent of the Purchase Order nor in any way affect the interpretation of the Purchase Order.
In the event that Purchaser fails to pay the amounts owed to Air Freshener Marketing under the Purchase Order, Air Freshener Marketing shall be entitled to recover from Purchaser reasonable attorneys’ fees and costs Air Freshener Marketing incurs in enforcing the provisions of the Purchase Order and these Terms and Conditions.
Any additional provision to the Purchase Order may be attached as an addendum and shall be incorporated by reference provided both parties have executed said addendum.