Terms and Conditions for the Sale of Goods outside the United States and Puerto Rico
1. SELLER. Delisher, MyDelisher.com and their owner AGC Masonry, Inc. (collectively the “Seller”) is an export trading company registered in the country of the U.S.A., and incorporated under law of the State of New York, and operates under the Federal Wholesale Permit in accordance the law which pursuant to jurisdiction of countries and states where the Goods are located or delivered. Seller’s address of business is 7105 Third Avenue Brooklyn, New York 11209.
2. SELLER’S OFFER. Seller offers for export purchase the duty-free Premium American Wines and Spirits (the “Goods”) by description, and provides a listing, sampling, pricing, location and shipping; and control over, and do guarantee the existence, quality, safety or legality; the truth or accuracy of content or listings; the ability of other parties to accomplish contractual obligations and other guidance in services (collectively the “Services”), such guidance is solely informational and the Buyer may decide to follow it or not.
3. BUYER. The Buyer is a person or foreign corporation of record that legally permitted to conduct a business in the importing country. Buyer selects the Goods at this website and on checkout stage enters billing information as a name and address, and applies for permission to order and pay for the Goods within preferred method of payment (the “Order”). When ordering from Seller, the Buyer is responsible for assuring that the Goods can be lawfully imported to the destination country. Seller has no knowledge what import licenses must be obtained and what foreign governmental filings must be made, and makes no representation to the legal rights of the Buyer to ship or import the Goods into any country.
4. BUYER’S ORDER. The Order is assignment to all of the terms set forth herein; and states the Buyer’s expressed request to purchase the Goods corresponding with each description on the face of the Order in reference to the brand, label, producer, certificates, country of origin, measure of unit including required price per case, total quantity, and total price of the Goods. The duty-free price displayed on the face of the Order includes state and federal excise and sales tax, export tariff that now in effect, and all other customs clearance charges and filing fees associated with the customs regulations of the exporting country. The Order is subject to acceptance by Seller (A) at the time of new account registration shall comply with existing distribution agreements on specific territories, and (B) substance to typographical errors in pricing of the Goods and Services.
5. SALE. These Terms and Conditions for the Sale of Goods with accompanying electronically submitted Order embodies entire contractual agreement (the “Sale”) between the Seller and the Buyer and supersedes all other conditions and agreements between the parties, unless expressly amended in writing by the Seller. The Seller shall deliver the Goods on the terms EXW or FAS, and the Buyer shall pay for the Goods and for procurement of international shipment.
6. LABELING, PACKAGING, MARKING. Unless the parties agree otherwise, the Goods bear mandatory information at the front, back, neck labels pursuant to the United States labeling regulation, and the Goods for shipment and storage ordered by the Buyer shall be packed in robust cartoon cases, and properly stocked on pallets, and pallet loads are protectively wrapped and marked in accordance with commercial standard pursuant to provision of Uniform Commercial Code and Convention on the International Sale of Goods.
7. PAYMENT TERMS. Payment for items of whatsoever nature shall be made in U.S. Dollars by electronic funds transfer and must be received by the Seller in full, without set-off or other deduction, as to such bank and account as the Seller may from time to time to designate in writing. Payment terms are 100% in advance, not later than the due date, whenever a cause of delay, such amount shall be paid on the next business day. Failure by the Buyer to make full payment by the due date shall constitute a default, the Seller may stop tender the documents of the title and suspend shipments hereunder. Seller shall notify the Buyer when payment is cleared and the Goods are ready for shipment. The method and agency of transportation and routing will be designated by the Buyer, thereupon; Buyer shall furnish shipping instructions stating the date of shipment. Seller shall not be required to ship the Goods until it has received shipping instructions from the Buyer.
8. DELIVERY. Seller supplies Goods from the locations listed on the website computing a reasonable transportation fee. Delivery and transportation provisions applicable to this Sale shall be those stated on the face of the Order and described in this paragraph, hereunder (A) where the shipping terms on the face of the Order state that the Goods are sold EXW warehouse, the Buyer pick-up, in this case Buyer’s truck is the destination. Seller shall bear all risk of loss or damage upon Seller’s loading of such Goods onto Buyer’s truck. (B) where the shipping terms on the face of the Order state that the Goods are sold from manufacture and then will be delivered by Seller’s truck at FAS terms to the Seller’s port, the cost of transportation and risk of loss or damage from manufacture till the port thereof shall be borne by Seller, and Seller’s truck is point of delivery, the Buyer shall be responsible for all further transportation and other costs incurred beyond this destination, which, without limitation, shall include all storage, loading, unloading, handling and other charges. (C) in event of a delay in shipment caused by the Buyer, and emergency request by a manufacture to withdraw the Goods from manufacture’s stock, the Seller against warehouse receipt will deliver and bear the cost of transportation of such Goods to such destination. Seller will in this case collect storage fee and cost of transportation with handling, as the Goods stored in warehouse after pickup due time are also subject to reasonable storage fee and the Buyer shall reimburse such extra expenses to the Seller.
9. TITLE AND RISK. Title for the Goods and risk of loss and damage shall pass to the Buyer upon delivery to the carrier designated by the Buyer at the Seller’s facilities.
10. SHIPMENT BY SELLER. Where the Buyer authorizes the Seller’s carrier, and pays the Seller for shipment (freight charges and marine insurance) which is beyond the particular destination as this Sale requires the Seller to have the Goods delivered to the Buyer. Then, the Seller must put the Goods in the possession of such carrier and make such contract with the carrier on behalf of the Buyer that is reasonable having regard to the nature of the Goods and the other circumstances of the case, and then the Seller shall promptly notify the Buyer of the shipment. The Buyer shall treat the delivery to the carrier as a delivery to the Buyer and may not hold the Seller responsible in damages.
11. DELAYS. Seller shall use reasonable efforts to accomplish order in accordance with the estimated shipping date, but shall not be responsible for any delays in taking care of the Sale nor liable for any losses or damages shall resulting from such delays and the Order not be subject to cancellation for such delays.
12. FORCE MAJEURE. Seller will not be liable for failure in the performance of its obligations hereunder where such performance has been delayed, prevented or rendered, commercially impractical due to accidents, differences with workmen, strikes, shortage of labor, inability to obtain the Goods, fuel or power from normal sources, fires, floods or other acts of God, law, acts or omissions of the Buyer, or any cause whether similar or dissimilar to those enumerated, beyond the reasonable control of the Seller.
13. WARRANTY. Seller warrants to the Buyer that the Goods at the time of shipment to the Buyer hereunder: (A) will conform to the specifications on the face of the Order, and in compliance to certificates of origin; and (B) the Goods are of a satisfactory quality, and delivered in quantity required by the Order; and (C) are adequately contained, packaged, and labeled as the Order may require; and (D) conform to the promise or affirmations of fact made on the container or label; and (E) that it will convey good title thereto and that such Goods will be delivered free from any lawful security interest or other lien or encumbrance unknown to the Buyer; and (F) that such Goods will be free from defects in material and workmanship. THE SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED (INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), EXCEPT SUCH AS IS EXPRESSLY SET FORTH HEREIN.
14. PASS THROUGH WARRANTIES. Buyer acknowledges that all Goods are being manufactured for the Seller by manufactures or other third producers other than the Seller. The Seller extends to the Byer the warranties as to such Goods provided by such other producers to Seller for length of time that such warranty remains valid for the Seller.
15. INSPECTION, ACCEPTANCE OR REJECTION. At the place of loading, the Buyer shall inspect the Goods, or cause them to be examined before shipment. Reasonable facilities shall be afforded to inspectors representing the Buyer to make an examination of the Goods for the purpose of ascertaining whether the Goods are in conformity with the contractual descriptions, and such inspection and acceptance shall be final. If the Buyer fails to inspect the Goods, the failure shall be deemed an acceptance of the Goods, and any acceptance shall be deemed a waiver of any right to revoke acceptance at some future date with respect to any defect that a proper inspection would have revealed.
16. CLAIMS. Seller shall not be liable for any claims unless they are made promptly after receipt of the Goods and due opportunity has been given for investigation by the Buyer, a full statement in writing of the claim and of the basis therefore shall be filed with the Seller. Goods shall not be returned except with Seller’s permission.
17. LIMITATION OF LIABILITY. Seller’s liability and Buyer’s exclusive remedy for any tender of nonconforming or defective Goods or breach of warranty, is expressly limited to Seller’s choice of (A) the repair of nonconforming or defective Goods; (B) the replacement of nonconforming or defective Goods with conforming Goods; (C) the repayment of that portion of the purchase price represented by nonconforming or defective Goods. Such repair, replacement or repayment will be made only upon return of the nonconforming or defective Goods, which may be returned at Seller’s cost only after inspection by the Seller and receipt by the Buyer of definite shipping instructions from the Seller. Seller shall not be liable for any incidental, consequential, indirect, special, exemplary, contingent, or punitive damages for (A) any breach of contract or warranty, whether based on theories of breach of warranty, breach of contract, tort, negligence, strict liability or otherwise; (B) the tender of defective or nonconforming Goods; or (C) breach of any other provision of this agreement; or (D) any claim of any kind arising out of or relating to any Order or Seller’s performance in connection therewith. In any event, Seller’s liability to Buyer shall not exceed the purchase price of the Goods on which such liability is based. Buyer assumes all other liability for any loss, damage or injury to persons or property arising out of, connected with or resulting from the use of the Goods, either alone or in combination with other products.
18. INDEMNITY. Buyer shall release, hold harmless, indemnify and defend Seller, its present and future officers, directors, officials, employees, agents, subsidiaries, affiliates, successors and assigns from any liability (including without limitation liability for negligence or strict liability) claims, losses, suits, demands, penalties, fines, forfeitures, damages and costs caused by, arising out of or relating to the Goods supplied hereunder, the design of Goods supplied hereunder or the design of the packages or containers in which Goods are shipped, if such Goods’ packages or containers are made in compliance with Buyer’s designs or specifications, or any act or omission of the Buyer or its successors, assigns, agents, representatives or employees.
19. INSURANCE AND DOCUMENTATION. Upon the Buyer’s request the Seller shall provide evidence of insurance, and all other documentation, except confidential, as commercial invoice, export packing list, bill of lading, generic certificate of origin, dock receipt and warehouse receipt, customs certificate of registration, but are not limited to the following as design and warranty of the Goods, taxes paid or other payments made in connection to the Sale with the goal to assure the Buyer that the Buyer’s funds, Goods and Services are secured and under control of the Seller.
20. ELECTRONIC COMMERCE. At Seller’s request, Seller and Buyer will facilitate business transactions by electronically transmitting data. Any data digitally signed pursuant to this section and electronically transmitted will be as legally sufficient as a written, signed, paper document exchanged between the parties, notwithstanding any legal requirement that the data be in writing or signed. Each authorized representative of a party will adopt a unique, verifiable digital identification consisting of symbols or codes to be transmitted with each transmission. Use of the digital identification will be deemed for all purposes to constitute a “signature” and will have the same effect as a signature on a written document.
21. COUNTRY OF IMPORTATION. Buyer represents that the Goods are purchased for the purpose of exportation and the Buyer covenants that the Goods will be shipped to that destination, and shall furnish, if required by the Seller, a landing certificate duly executed by the customs authorities at the port of importation, certifying that the Goods have been landed and entered at that port.
22. ARBITRATION. All disputes, controversies or claims arising in connection with the present Sale, including a dispute regarding its validity, termination, performance or breach thereof, shall be finally settled by arbitration administered by the International Court of Arbitration of the International Chamber of Commerce (the “ICC”) in accordance with the ICC Rules of Arbitration in effect at the time of the arbitration. The arbitration shall be conducted by three arbitrators appointed in accordance with said rules. The place of arbitration shall be 1212 Avenue of Americas New York, New York 10036 USA and the proceedings shall be conducted in the English language. The award rendered by the arbitrator(s) shall be final and binding on the parties and judgment on the award may be entered in any court of competent jurisdiction.
23. GOVERNING LAW. The laws governing the present Sale and any dispute arising from or in connection with the Sale shall be the laws of the State of New York, and from provisions of Federal law without regard for choice of law. Notwithstanding anything to the contrary herein, the arbitration provisions set forth herein, and any arbitration conducted thereunder, shall be governed exclusively by the Federal Arbitration Act, Title 9 United States Code, to the exclusion of any state or municipal law of arbitration.