These Purchase Terms and Conditions govern all orders placed in this section of this web site. The Purchase Terms and Conditions do not supercede or amend the License Agreement between any Licensed Applicator/Buyer and Hacker Industries, Inc. Licensed Applicator is referred to herein as "Licensee".
1. Confidentiality. Licensee agrees on behalf of itself and its officers, directors, employees and agents that all information in this Licensed Applicator's portion of this web site is confidential information of Hacker Industries, Inc. and to use its/their best efforts to keep such information confidential, including without limitation preventing duplication or disclosure of any data, plans, specifications, formulae, drawing or any other information whether business or technical, of a confidential nature, which has been furnished directly or in connection with this web site.
For purposes of the preceding paragraph, "confidential information" does not include information that is in the public domain prior to its disclosure, becomes part of the public domain through no wrongful act of the Licensee, or was in the lawful possession of the Licensee prior to its disclosure to the Licensee.
2. Warranty. Hacker Industries, Inc. warrants to Licensee that:
- It has good title to any and all goods ordered via this web site, which are free and clear of any and all liens and encumbrances.
- In the performance of its obligations hereunder, it comply with all, and shall not violate any, applicable federal, state and local laws or governmental regulations in connection with providing goods pursuant to orders placed by Licensee
3. Pricing: Title and Risk of Loss.
- The prices indicated on this web site are subject to change at any time without notice. Prices exclude shipping, freight, war-risk, marine, or other insurance, harbor charges, tolls demurrage, wharf handling, warehousing charges and taxes. Licensee must pay all applicable sales and uses taxes, value added taxes and other taxes levied on it by any taxing authority on any purchase in any jurisdiction where such transactions are otherwise subject to tax, regardless of the method of delivery. Any taxes owed by Licensee: (a) as a result of entering into these Purchase Terms and Conditions or making any payment for orders at this web site, (ii) are required or permitted to be collected from Licensee by Hacker Industries, Inc. under applicable law, and (iii) are based upon the amount payable under these Purchase Terms and Conditions, must be remitted by Licensee to Hacker Industries, Inc. Licensee will promptly reimburse Hacker Industries, Inc. for all taxes or other charges imposed upon by any national, state or municipal government for the sale, use, production or transportation of products available at this web site.
- All payments must be made in U.S. Dollars and in good funds. Past due balances are subject to a late payment charge of one and a half percent (1.5%) per month, or the maximum amount permitted by applicable law, whichever is less.
- Title to any goods ordered on this web-site and risk of loss thereof, or damage thereto, shall pass to Licensee upon shipment.
4. Transportation. No changes will be assessed against Licensee for storage or packing unless specified in ordering screens, or due to delay caused by Licensee or any inability to unload shipments. Hacker Industries, Inc. will use commercially reasonable efforts to choose a shipping carrier and route resulting in the lowest shipping costs, except when special or expedited shipping requirements are otherwise requested by Licensee.
5. Changes. Licensee may, with 48 hours notice prior to the time a particular order ship, make changes in the following: (a) methods of shipment, (b) place of delivery, and (c) time of delivery. Any such change that causes an increase or decrease in the cost of or the time required for preparing or shipping a particular order will be charged to Licensee.
6. Warranty Disclaimers & Limitations on Liability and Remedies.
- THE WARRANTIES SET FORTH IN SECTION 2 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES AND HACKER INDUSTRIES, INC. HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES IN CONNECTION WITH PRODUCTS MADE AVAILABLE AT THIS WEB SITE, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- HACKER INDUSTRIES, INC. WILL NOT BE LIABLE TO LICENSEE, OR ANY USER, FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR IN CONNECTION WITH ANY HACKER INDUSTRIES, INC. PRODUCT ORDERED VIA THIS WEB SITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- WITHIN THIRTY (30) DAYS AFTER THE DATE OF RECEIPT OF ANY PRODUCT SHIPMENT, LICENSEE MUST EXAMINE THE PRODUCT FOR ANY DAMAGE, DEFECT OR SHORTAGE AND NOTIFY HACKER INDUSTRIES, INC. OF ANY CLAIM FOR DAMAGE, DEFECT OR SHORTAGE IN THE SHIPMENT, HACKER INDUSTRIES, INC.'S ENTIRE LIABILITY AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY PRODUCT ORDER WILL BE REPAIR OR REPLACEMENT OF THE PRODUCT. IN HACKER INDUSTRIES, INC.'S SOLE DISCRETION. LICENSEE WILL COMPLY WITH ANY INSTRUCTIONS GIVEN BY HACKER INDUSTRIES, INC. RELATING TO RETURNING PRODUCT UNDER THIS SECTION 6(c). ALL CLAIMS FOR DAMAGE, DEFECT OR SHORTAGE RELATING TO A PRODUCT SHIPMENT, WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE ARE WAIVED BY LICENSEE UNLESS MADE IN WRITING AND WITH THE NOTICE RECEIVED BY HACKER INDUSTRIES, INC. WITHIN THIRTY (30) DAYS AFTER LICENSEE'S RECEIPT OF PRODUCT TO WHICH THE CLAIM RELATES.
- IF THE LIMITATION OF REMEDIES SET FORTH IN SECTION 6(c) ABOVE, IS HELD NOT TO APPLY TO A PARTICULAR CLAIM BY A COURT OF COMPETENT JURISDICTION, HACKER INDUSTRIES, INC.'S LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THESE PURCHASE TERMS & CONDITIONS (INCLUDING WITHOUT LIMITATION ANY CLAIM OF CONTRACT BREACH, TORT OR NEGLIGENCE) WILL BE LIMITED TO 100% OF THE AMOUNT ACTUALLY PAID BY LICENSEE TO HACKER INDUSTRIES, INC. FOR THE PRODUCT ORDER SPECIFICALLY RELATING TO SUCH CLAIM. SUCH LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL AMOUNTS PAID BY LICENSEE BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. LICENSEE AGREES THAT THIS IS ITS SOLE AND EXCLUSIVE REMEDY UNDER THESE PURCHASE TERMS & CONDITIONS AND HEREBY RELEASES HACKER INDUSTRIES, INC. FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THE LIMITATION.
7. Non-Waiver. The failure by either party to pursue any remedy hereunder shall not constitute a waiver on its part to pursue such remedy with respect to the same or similar breach.
8. Governing Law. These Purchase Terms and Conditions shall be construed in accordance with the laws of the State of California without regard to the conflicts provisions thereof. Licensee irrevocably consents to venue and jurisdictions in the state and federal courts of Orange County, California.
9. Severability. If any provision of these Purchase Terms and Conditions shall be held invalid or unenforceable to any extent, the remainder of the Purchase Terms and Conditions shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
10. Relationship of the Parties. Nothing contained in these Purchase Terms and Conditions shall be construed as creating any agency, partnership, joint venture or employment relationship between the parties.
11. Assignment. Licensee may not assign any of its rights nor delegate any of its duties under these Purchase Terms and Conditions. Agreement in whole or in part without Hacker Industries, Inc.'s prior written consent, which consent shall not be unreasonably withheld.
12. Force Majeure. Any other provision of this Agreement notwithstanding, if for any reason Hacker Industries, Inc. availability of any product, including without limitation, FIRM-FILL Gypsum Concretes, is curtailed or shut down, Hacker Industries, Inc. shall be excused from performance hereunder to the extent of such curtailment or shutdown and shall not be liable in any manner to the Licensee. If there is a shortage of any product, Hacker Industries, Inc. may partially fill orders in its sole discretion. Hacker Industries, Inc. shall not be liable for failure to ship orders or delays in shipment by reason of the following matters, which include, but are not be limited to: (a) Fires, floods, windstorms, or other casualties; (b) Wars, riots, civil commotion, embargoes, governmental regulations, or seller's inability to obtain necessary materials (finished or otherwise) from its usual sources of supply; (c) Shortage of cars, trucks, or containers or delays in transit; (d) Existing or future strikes or other labor troubles affecting production or shipment, whether involving employees of Hacker Industries, Inc. or employees of others, and regardless of responsibility or fault on the part of Hacker Industries, Inc. (e) Other contingencies of manufacture or shipment, whether or not of a class or kind mentioned herein and not reasonably within Hacker Industries, Inc.'s control or any act constituting force majeure.
13. Notices. All notices in connection with these Purchase Terms and Conditions shall be sent U.S. Mail or facsimile to the addresses specified on the Licensed Applicator Agreement and shall be deemed effective three days after deposit into the U.S. mails certified and postage prepaid and one day after dispatch via facsimile to the number set forth in the Licensed Applicator Agreement.
14. Entire Agreement. These Purchase Terms and Conditions constitute the entire agreement between Hacker Industries, Inc. and Licensee with respect to purchases made via this web site and supersedes all other (prior or contemporaneous) communications, displays or proposals, whether electronic, oral or written, between the parties, except for the License Agreement.