Silvaris Corporation’s Terms & Conditions of Sale
Effective July 26, 2007. Updated May 10, 2017.
These Terms and Conditions may be amended, supplemented or replaced from time to time and without notice.
“Seller,” shall mean Silvaris Corporation, a Washington corporation, and any Silvaris-related entities. “Buyer” shall mean the individual or entity so identified on Seller’s Invoice or Order Acknowledgement.
Sales by Seller are governed by these terms and conditions, unless the parties have executed a written agreement amending these Terms and Conditions prior to sale. All of Seller’s offers of sale are conditioned upon Buyer’s acceptance of all, and only, these terms. Any additional or different terms in Buyer’s forms or other documents are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. This is the final and complete expression of all terms and conditions of the agreement. Any representations, promises, warranties, or statements, including oral statements not reduced to writing, that are not contained herein are void.
THE GOODS SOLD ARE SOLD “AS IS WITH ALL FAULTS” AND WITHOUT ANY WARRANTIES AS TO THE PRODUCTS SOLD HEREUNDER. NO OTHER WARRANTIES , EXPRESS OR IMPLIED, SHALL APPLY, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THAT SOLD GOODS WILL CONFORM WITH THE PREVIOUSLY PROVIDED SAMPLES. To the extent that the manufacturer of the product provides a warranty and such warranty is transferable, Seller will transfer such manufacturer’s warranty to Buyer without incurring any liability thereunder. All products not specifically listed as certified by a grading agency are to be considered downfall products unless otherwise specified. These products are not intended for any use where a grading agency certification is required.
Payment terms are stated on each Invoice or Order Acknowledgment. A late payment charge of up to 1.5% per month (which shall not exceed the maximum amount allowed by law), compounded monthly, will be imposed on all past due amounts. In the event of a delinquency, Seller may, without notice and in its sole discretion, hold or cancel orders, refuse to accept new orders, and accelerate all amounts due. Further, if Seller, in its sole discretion, finds it necessary to employ a collection agency or an attorney to collect any past due amounts owed hereunder, it may collect, in addition to any other sums owed hereunder, the reasonable collection fee and/or reasonable attorneys’ fees and costs. Buyer grants to Seller a lien and security interest in the goods to secure payment of the purchase price, and agrees to execute any additional documents (including without limitation financing statements) deemed necessary or convenient by Seller to perfect Seller’s security interest in the goods.
Purchasing Goods on Credit
Any credit terms offered by Seller are available only for as long as Buyer complies with all its obligations under these terms and conditions, including without limitation, the provisions requiring timely payment of invoices within the stated terms. If credit terms are no longer available, Buyer shall pay cash in advance for all purchases. If Seller shall have any doubt at any time as to Buyer’s financial responsibility, Seller, in its sole discretion, either may (1) decline to make further shipments except under receipt of cash in advance or upon giving of other security satisfactory to Seller; or (2) terminate this sale. Nothing in this paragraph is intended to affect the Buyer’s obligation to accept and pay for the goods.
Buyer shall not be entitled to deduct from the price of Seller’s invoices the amount of any claim asserted by Buyer against Seller, unless such claim has been allowed by Seller, in writing, and Seller agreed in writing that Buyer could make any such deduction. Further, Buyer shall not off-set any amounts due and owing to it from Seller without Seller’s prior written permission. On the other hand, Seller may, in its sole discretion, off-set any amounts due and payable to Buyer with any amounts due and payable from Buyer to Seller.
Except as otherwise provided herein, Buyer may not cancel or terminate any purchase without Seller’s written consent. In the event of cancellation, Buyer shall send Seller written notice, as set forth in the Notification Section below, of proposed cancellation; however, the order shall not be deemed cancelled until Buyer receives from Seller a signed acceptance of the proposed cancellation. In the event Buyer cancels an order and Seller accepts such cancellation, Buyer is fully responsible to Seller for any and all expenses it incurs as a result of Buyer’s cancellation, including without limitation demurrage charges, freight charges, storage charges and possibly a re-stocking fee. Seller may unilaterally cancel any order if it becomes aware of adverse credit information regarding Buyer or as otherwise stated herein.
Limitation of Remedy & Liability
Buyer’s sole and exclusive remedy against Seller, and Seller’s sole liability to Buyer, including for breach of this Agreement, is limited to refund of the purchase price for such goods that may be the subject of such breach. Under no circumstances shall Seller be liable to Buyer or any other person or entity for any incidental, consequential, or indirect damages which are suffered by Buyer or any other person or party whether arising in tort, contract, or otherwise. No action at law or in equity shall lie against Seller if not commenced within one year after the cause of action has occurred. The remedies provided above shall be subject to and available only if Buyer has followed the claims procedures set forth in this Agreement.
Unless the stated delivery date is expressly guarantied, the shipping and delivery dates in any Purchase Order or Order Acknowledgment are approximate and based on Seller’s best judgment at the time.
Delivered Sales Price
When sales prices include any costs of transportation from point of shipment, the price provided is an estimate based on Seller’s good faith estimation of the shipping costs. Buyer shall be responsible for any substantial increase in such costs becoming effective after the applicable price is quoted or established by Seller, and such cost increases shall be reflected on Seller’s Invoice to Buyer. Buyer is responsible to Seller for at least the estimated shipping cost quoted by Seller. Seller arranges shipment as a service to Buyer; actual shipping costs incurred by Seller may differ from the costs passed along to Buyer. Buyer shall also be responsible for any increases in delivery costs resulting from Buyer’s delivery instructions to Seller or to the carrier and any extra costs utilizing substitute methods of delivery, when the intended type of carrier or loading or unloading facilities become unavailable. Seller shall be entitled to the benefit of rebates, allowances, or special rates from carriers.
Buyer shall inspect all shipments of goods immediately upon arrival and shall notify Seller of any shortages, overages, or other nonconformities within in seven (7) days after arrival. Buyer and Seller agree the 7-day period is a reasonable inspection period. Buyer shall notify Seller in writing of any discrepancies regarding quality, quantity, or any other claims, and Buyer must hold the goods in question for Seller’s inspection. Buyer shall submit written claims as described in the Notification Section below. Seller will not honor any agreements or allowances made by the Seller’s sales person unless confirmed in writing by the Seller’s Claims Manager. Any nonconformities (including shortages or overages) not reported to Seller as and when required by this Section will be deemed waived and accepted by Buyer.
Buyer shall submit all written notifications to Seller via facsimile to 206-328-3253 or U.S. postal service sent to Silvaris Corporation, 505 5th Ave. South, Suite 170, Seattle, WA 98104. Written notices not sent to Seller in accordance with this Section shall be deemed not received by Seller.
All sales tax, excise taxes, or other forms of taxes levied against this transaction shall be paid by Buyer over and above all other sums Buyer is or may become obligated to pay hereunder.
If Buyer has a significant change of ownership or has a change of management authority or becomes insolvent, appoints a receiver for the benefit of creditors, voluntarily files or consents to the filing of a petition under any bankruptcy, reorganization or similar law or a petition under any bankruptcy, reorganization or similar law is filed against Buyer and not dismissed within 90 days, or Buyer defaults under any agreements with, or terms of, Seller at its option may, with or without terminating any agreement with Buyer and without waiving any other remedies available to Seller: (a) declare all amounts due and to become due Seller from Buyer immediately due and payable; (b) stop all shipments in progress and further shipments under this Agreement; (c) repossess and sell or otherwise dispose of any property of Buyer in which Seller has a security or ownership interest; or (d) treat any insolvency or default as a repudiation by Buyer of the entire order, recall the goods (if shipped), and hold Buyer liable for any damages, including without limitation, special, consequential, and incidental damages.
Buyer shall specifically insure the goods against “all risks, “subject to normal exclusions, from the time that the risk of losses passes to Buyer and continuously thereafter until all amounts payable by Buyer are paid in full to Seller for no less than the total amount owing to Seller, with loss first payable to Seller, as its interests may appear. Upon demand, evidence of such insurance satisfactory to Seller shall be submitted by Buyer prior to shipment or Seller may procure such insurance at Buyer’s expense. Seller’s failure to request such proof of insurance does not constitute a waiver of Seller’s rights under this Section.
Without notice and in its sole discretion, Seller may assign its rights, obligations and benefits under all its sale contracts to a third party. Buyer may not assign its obligations under any contract with Seller without Seller’s prior written approval.
This Agreement shall be interpreted in accordance with the laws of the State of Washington, without giving effect to its or any other jurisdiction’s principles of conflicts of laws. Buyer hereby irrevocably and unconditionally submits to the exclusive jurisdiction of and venue in the state and federal courts located in King County, Washington or any other court of competent jurisdiction and venue selected by Seller at its sole discretion, in any action or proceeding arising out of or related to this Agreement or any related Invoice or Order Acknowledgment, and in so doing, all parties irrevocably & unconditionally waive Native American/Reservation and any other jurisdiction.
Attorneys’ Fees & Costs
In the event litigation is initiated under these Terms and Conditions, the prevailing party is entitled to recover its reasonable attorneys’ fees and costs.
Seller shall be free from any liability for delay or failure in delivery arising from strikes, lockouts, labor troubles of any kind, accidents, perils of sea, fire, earthquake, hurricane, tornadoes, other acts of God, civil commotion, war or consequences of war, acts of terrorism, governmental acts, restrictions or requisitions, failure of manufacturers or suppliers to deliver, bankruptcy or insolvency of manufacturers or suppliers, suspension of shipping facilities, a default of any carrier or any other contingency of whatever nature beyond Seller’s control including disturbances existing at the time the contract was made. In such a situation, if shipment or delivery is not made during the period contracted for, Buyer shall accept delivery under this contract when shipment is made; provided, however, Buyer shall not be obligated to accept delivery if shipment is not made within a reasonable time after cessation of the aforementioned impediments or causes.
This Agreement shall be binding upon the parties hereto and their respective heirs, successors, personal representatives and assigns. In the event Buyer sustains a change of ownership, change of management authority, Buyer represents and warrants that all owners and/or shareholders (including new owners and shareholders) of Buyer will assume joint and several responsibility for all liabilities associated with this sale and all other amounts due and owing to Seller.
If any provision of this Agreement or the application thereof to any persons or entities or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be deemed affected thereby, and every other provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Seller shall not become or be deemed a partner or joint venturer with Buyer by reason of any provision of these terms and conditions. Nothing herein shall constitute Buyer and Seller as partners or joint ventures or require Seller to participate in or be responsible or liable for any costs, liabilities, expenses or losses of Buyer.
Seller’s failure to exercise any rights herein shall not constitute a waiver of its right to exercise the same or any other rights at any subsequent time in respect of the same event or any other event.
Captions used in these terms and conditions are for convenience of reference only, and shall not be used in construction or interpretation of these terms and conditions.
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