Terms & Conditions
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Ammonite, Inc.
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Ammonite Inc.
Attn: Mike McDonald
3352 Walnut Lane
Lafayette, CA 94549
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Terms and Conditions of sale
These Terms and Conditions of Sale (the “Terms”) govern the sale of DablicatorTM oil applicators (the “Goods”) by Ammonite, Inc. (“Ammonite”) to the buyer (“Buyer”) named on the accompanying Invoice. The Terms, the Invoice, and the Brand Guidelines provided to Buyer by Ammonite (collectively, the “Agreement”) comprise the entire agreement between Buyer and Ammonite (each a “Party” and together the “Parties”) and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over, and expressly exclude, any of Buyer's 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 does not serve to modify or amend these Terms.
Shipment & Delivery; Inspection
Shipment & Delivery. Unless otherwise expressly agreed by the Parties in writing, Ammonite shall select the method of shipment of and the carrier for the Goods. Ammonite may, in its discretion, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale and Buyer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of an Invoice. Unless otherwise expressly agreed by the Parties in writing, Ammonite shall deliver the Goods to the Delivery Location using Ammonite's standard methods for packaging and shipping such Goods. Any time quoted for delivery are an estimate only and may be updated after shipment.
Transfer of Title and Risk of Loss. Title and Risk of Loss to Goods shipped under any Purchase Order passes to Buyer upon tender of the Goods by shipper at the shipping location stated on the applicable Invoice.
Inspection. Buyer shall inspect Goods received under this Agreement within 5 business days of receipt ("Inspection Period") and either accept or, only if any such Goods are Nonconforming Goods, reject such Goods. Buyer will be deemed to have accepted Goods unless it provides Ammonite written notice of Nonconforming Goods within the Inspection Period, stating with specificity all defects and nonconformities, and furnishing other written documentation as may be reasonably required by Ammonite (including a representative sample the Goods). All defects and nonconformities not so specified will be deemed waived and such Goods shall be deemed to have been accepted by Buyer. If Buyer timely notifies Ammonite of any Nonconforming Goods, Ammonite shall determine, in its reasonable discretion, whether the Goods are Nonconforming Goods. If Ammonite determines that such Goods are Nonconforming Goods, Ammonite shall, in its discretion, either: (a) replace such Nonconforming Goods, or (b) refund the amount paid by Buyer for such Nonconforming Goods returned by Buyer to Ammonite. The remedies set forth in this section are Buyer’s exclusive remedy for the delivery of Nonconforming Goods. For the purposes of this Agreement, "Nonconforming Goods" means any goods received by Buyer from Ammonite pursuant to an Invoice that (a) do not conform to the model listed in the applicable Invoice, (b) do not fully conform to any specifications provided by Ammonite.
Prices
Prices. Buyer shall purchase the Goods from Ammonite at the prices set forth on the applicable Invoice ("Prices"). All Prices are exclusive of, and Buyer shall be responsible for, all domestic and international shipping charges and insurance costs and all taxes, duties, or port clearance charges with respect to the sale, shipment, use or Price of the Goods. Shipping charges on the applicable Invoice are an estimate only; actual charges will be provided after shipment.
Non-standard Goods. Invoiced Prices for non-standard hardware or packaging are estimates only. Actual Prices will be determined upon confirmation from Ammonite’s suppliers and updated on a Final Invoice.
Excess Packaging Units. Packaging units delivered may deviate from invoiced quantity by up to 10%. Charges will be updated on a Final Invoice based on quantity delivered.
Late Payments. Buyer shall pay interest on all late payments, compounded monthly, at the lesser of the rate of 10% per month or the highest rate permissible under Applicable Law.
Obligations of Buyer
Compliance with Applicable Laws. Buyer agrees at all times to comply with all Applicable Law applicable to this Agreement and Buyer's use or sale of the Goods. Buyer expressly acknowledges and agrees that knowledge of Applicable Law applicable to Buyer’s use or sale of the Goods, and compliance therewith, is exclusively the responsibility of Buyer. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the purchase, use or resale of the Goods, and (b) not engage in any activity or transaction involving the Goods, by way of resale, lease, shipment, use or otherwise, that violates any Applicable Law. "Applicable Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority, except that, to the extent that US federal law imposes prohibitions, standards or conditions inconsistent with applicable US state or local laws, the term Applicable Law shall refer only to state and local laws and consistent US federal laws.
Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, neither Buyer nor its employees or agents shall (a) make any representations, warranties, guarantees, indemnities, similar claims or other commitments: (i) actually, apparently or ostensibly on behalf of Ammonite, or (ii) to any customer or other person with respect to the Goods, which are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims or other commitments in this Agreement or any written documentation provided by Ammonite to Buyer; (b) engage in any unfair, competitive, misleading or deceptive practices respecting Ammonite, Ammonite's Trademarks or the Goods, including any product disparagement; (c) modify, alter or adulterate the Goods, including any packaging, in any way, except for filling of the Goods with Buyer’s oil for resale or the application of Buyer’s Trademarks in accordance with the Brand Guidelines, as set forth in Exhibit A; or (d) knowingly transfer or sell any Goods, or products incorporating, bundled with, or packaged with the Goods, in a manner not in compliance with Applicable Law.
Notice of Governmental Communications. Buyer will promptly notify Ammonite in writing of any written or verbal inquiries from, inspections by, or notices from any governmental authority regarding the Goods, products incorporated into the Goods, or products incorporating the Goods, along with any Buyer responses thereto.
Representations and Warranties
Limited Product Warranty. Subject to other limitations set forth in this Section, Ammonite warrants to Buyer (the "Product Warranty") that Buyer that for a period of 180 days from the date of shipment (the "Warranty Period"), each Good will be free from defects in material and workmanship. The Product Warranty does not apply to any Good that: (a) has been subjected to abuse, misuse, neglect, negligence, accident, improper storage or handling, abnormal environmental conditions or physical stress, or use contrary to any instructions issued by Ammonite; (b) has been reconstructed, repaired or altered without Ammonite’s prior written approval; or (c) has been used with or incorporated any third-party products, hardware or product that has not been previously approved in writing by Ammonite.
Exclusive Remedy for Defective Goods. If during the Warranty Period Buyer believes any Goods delivered are not conforming to the Product Warranty (“Defective Goods”), Buyer shall notify Ammonite, in writing, of any alleged defect within 3 Business Days from the date of discovery, or upon reasonable inspection should have discovered, the alleged defect (but in any event before expiration of the Warranty Period). Buyer shall ship, at Ammonite's reasonable expense and risk of loss, the allegedly Defective Goods to Ammonite's designated facility for inspection and testing. If Ammonite's investigation reveals that such Goods are defective and any such defect has not been caused or contributed to by any of the factors described under Section 4.2 above, Ammonite shall, at Buyer’s option, either (a) credit Buyer for the Defective Goods or (b) repair or replace the Defective Goods. If Buyer requests repair or replacement, Ammonite will ship to Buyer, at Ammonite's expense and risk of loss, the repaired or replaced Goods to a location designated by Buyer. This Section sets forth Buyer’s sole remedy for any breach of the Product Warranty and is conditioned upon Buyer's timely provision of notice hereunder.
No Other Warranties. EXCEPT FOR THE EXPRESS, LIMITED PRODUCT WARRANTY SET FORTH IN SECTION 4.1, (A) NEITHER AMMONITE NOR ANY PERSON ON AMMONITE'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND (B) BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY AMMONITE, OR ANY OTHER PERSON ON AMMONITE'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 4.2 OF THIS AGREEMENT.
Withdrawal of Goods. If Ammonite determines that any Goods sold to Buyer may be Defective Goods, at Ammonite's request, Buyer shall withdraw all similar Goods from sale and, at Ammonite's option, either return such Goods to Ammonite pursuant to the terms of Section 4.2 or destroy the Goods and provide Ammonite with written certification of destruction. Upon such return or destruction, Buyer’s remedies shall be those set forth in Section 4.2.
Indemnification
Buyer shall indemnify, defend and hold harmless Ammonite and its Representatives, Affiliates, successors and permitted assigns (collectively, the "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, "Losses"), incurred by Ammonite arising out of any third-party claim relating to: (a) any material breach or non-fulfillment of any representation, warranty or covenant under this Agreement by Buyer or its employees or agents; (b) any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Buyer or its employees or agents; (c) any failure by Buyer or its employees or agents to comply with any Applicable Laws; (d) any good or product of Buyer or any third party that is incorporated into, bundled or packaged with, or otherwise sold alongside the Goods by Buyer; or (e) any act or omission by Buyer in marketing or reselling the Goods or products incorporating the Goods; or (f) any actual or alleged infringement of intellectual property rights relating to Buyer’s use or placement (including Ammonite’s use or placement at Buyer’s direction) of branding or other information on the Goods, products incorporating, bundled or packaged with the Goods, or their labeling, packaging or promotional materials.
Limitation of Liability. IN NO EVENT SHALL AMMONITE OR ITS REPRESENTATIVES BE LIABLE TO BUYER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL AMMONITE'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 AMOUNT PAID TO AMMONITE FOR THE GOODS SOLD HEREUNDER.
Intellectual Property Rights
Ownership. Buyer acknowledges and agrees that: (a) any and all intellectual property rights owned or licensed by Ammonite (“Ammonite Intellectual Property Rights”) are the sole and exclusive property of Ammonite or its licensors; (b) except for its limited rights under the trademark license in Section 7.2 of this Agreement, Ammonite (or its licensors) retain all intellectual property rights used to create, embodied in, used in, and otherwise relating to the Goods and any of their component parts; (c) Buyer shall not acquire any ownership interest in any of the Ammonite Intellectual Property Rights under this Agreement; (d) any goodwill derived from the use by Buyer of Ammonite Intellectual Property Rights inures to the benefit of Ammonite or its licensors, as the case may be; (e) if Buyer acquires any Intellectual Property Rights in or relating to any product (including any Good) purchased under this Agreement (including any rights in any Trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Ammonite or its licensors, as the case may be, without further action by either Party; and (f) Buyer shall use Ammonite's Intellectual Property Rights only in accordance with this Agreement and any instructions of Ammonite.
Limited License to Use Ammonite’s Trademarks. Subject to the terms and conditions of this Agreement and the Ammonite Brand Guidelines, which may be amended from time to time in Ammonite’s discretion, Supplier grants Buyer a non-exclusive, non-transferable, non-sublicensable license to use the Dablicator™ trademarks only in connection with the marketing and resale of the Goods purchased herein. All display or use of Ammonite’s marks shall conform to Ammonite’s Brand Guidelines then in effect. Upon Ammonite’s request, Buyer will, within a reasonable period of time, discontinue or modify the display or use of any Trademark with regard to the Goods when requested by Supplier.
Limited License to Use Buyer’s Trademarks. Subject to the terms and conditions of this Agreement, Buyer grants to Ammonite a non-exclusive, non-transferable, non-sublicensable license to use Buyer’s trademarks during the in connection with Ammonite’s marketing of the Goods.
Prohibited Acts. Buyer shall not: (a) take any action that may interfere with, challenge, or in any way be adverse to Ammonite's ownership of, or rights in, Ammonite Intellectual Property Rights; (b) apply for registrations anywhere in the world for Ammonite or its licensors’ trademarks (“Ammonite Trademarks”) or any trademark that is similar to, or incorporates, such; (c) use any mark, anywhere, that is confusingly similar to Ammonite Trademarks; (d) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under this Agreement (including Goods) or any Ammonite Trademark; (e) misappropriate any Ammonite Trademarks for use as a domain name; or (f) alter, obscure or remove any Ammonite Trademarks or proprietary rights notices placed on Goods purchased hereunder, marketing materials, or other materials Ammonite may provide.
Miscellaneous.
Notices. All notices under this Agreement must be in writing, delivered by personal delivery, nationally recognized overnight courier, certified or registered mail, or e-mail (with confirmation of transmission) and addressed to Ammonite at: Ammonite, Inc., 985 Moraga Rd., Ste. 205, Lafayette, CA 94549; customerservice@dablicator.com.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Amendments; Waivers. No amendment to this Agreement is effective unless it is in writing and signed by each Party. No waiver under this Agreement is effective unless in writing, identified as a waiver hereto, and signed by the Party so waiving.
Assignment. Buyer may not assign any rights or delegate any obligations under this Agreement without prior written consent of Ammonite.
Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and assigns.
No Third-Party Beneficiaries. Except for the Indemnified Parties under Section 5 herein, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Governing Law. This Agreement, including all exhibits, schedules, and attachments thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions thereof.
Force Majeure. Ammonite shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, if such failure or delay is caused by or results from acts beyond Ammonite's control, including: (a) acts of nature; (b) flood, fire, earthquake or explosion; (c) epidemics or pandemics, including quarantines or other employee restrictions (d) war (whether or not declared), invasion, hostilities, terrorist threats or acts, riot or other civil unrest; (e) requirements of Applicable Law; (f) actions, embargoes or blockades in effect on or after the date of this Agreement; (g) action by any Governmental Authority; (h) national or regional emergency; or (i) strikes, labor stoppages or slowdowns or other industrial disturbances (each, a "Force Majeure Event").
