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Blazin' Bakery General Terms and Conditions of Sale and Delivery
Tara Misu LLC. 15 1st St. South River, NJ 08882
These General Terms and Conditions of Sale and Delivery (these “Terms”) are applicable to all U.S. customers (the “Customers” and each, individually, a “Customer”) of Tara Misu LLC., a [Limited Liability Corporation] corporation (the “Company”).
1. Terms and Conditions of Sale:
1.1. Company shall sell and deliver to Customer and Customer shall purchase and accept from Company the products (herein, the “Products”) described on or in any confirmed order, agreement or quotation, or any combination thereof (the “Order”), pursuant to the terms and conditions of the Order and those specified below, which taken together shall constitute the entire agreement between Company and Customer regarding the Products (herein, this “Agreement”).
1.2. No other terms or conditions shall be of any effect unless otherwise specifically agreed to by Company in a separate written agreement duly signed by an officer of the Company. Customer will be deemed to have assented to all Terms if any part of the Products is accepted by the Customer. If Customer finds any Term not acceptable, Customer must so notify the Company at once and must reject the Products delivered under this Agreement. Any additional or different terms or conditions contained in Customer‘s order or response hereto shall be deemed objected to by Company and shall be of no effect. No general terms and conditions of a Customer shall at any time form a part of the content of any contract or agreement between the Customer and the Company, even if they are not further expressly rejected by the Company.
1.3. Unless otherwise agreed in writing, all quotations for Products are valid for a period of three (3) months from the date of issue. Subsequent modifications in quantity or quality, if such are requested by Customer, generally will cause a modification of the quoted price.
1.4. No Order is binding upon the Company until the earlier of acceptance of the Order in writing or the delivery of the Products to the Customer. Notwithstanding any prior acceptance of an Order by Company, Company shall have no obligation if the Customer is in breach of any of its obligations hereunder, or any other agreement between the Customer and Company, at the time Company’s performance was due.
1.5. All verbal agreements concerning the terms of any Order, including agreements made by telephone, shall have no force and effect unless and until acknowledged by the Company in writing.
1.6. Customer shall bear all costs associated with the cancellation or modification of the Order.
2.1. All price quotations are from Company’s principal place of business or in New Jersey, and do not include costs for packaging, postage or other freight charges, customs duties, insurance or taxes, if any.
2.2. The price of the Products shall be the Company‘s current prices in effect from time to time. A price list is available on request.
2.3. Company may, without notice to Customer, increase the price of the Products by the amount of any new or increased tax or duty (excluding franchise, net income and excess profits taxes) which Company may be required to pay on the manufacture, sale, transportation, delivery, export, import or use of the Products or the materials required for their manufacture or which affects the cost of such materials.
3. Terms of Payment:
3.1. Unless otherwise agreed to in writing by the Company, the amount invoiced shall be due and payable prior to delivery of the Products. Customer shall make payments by Paypal or credit card to the account indicated on the invoice without a cash discount or offset and the Company shall not be required to incur any expense to receive timely payment in full as required by this Agreement.
3.2. If Customer fails to observe these Terms or the terms of any other agreements between Company and Customer any Orders that have been confirmed by the Company, but not yet filled, shall in such cases become cancelable at the sole discretion of Company.
4. Delivery Terms:
4.1. Title to and risk of loss for the Products shall pass to Customer upon delivery thereof to any common carrier at Company’s site.
4.2. Customer will be billed for and shall pay all freight, transportation, shipping, insurance and handling charges, duties, and taxes, including any applicable VAT, sales, personal property, ad valorem, and other taxes, duties, levies or charges imposed by any governmental authority, irrespective of whether applicable law makes such items the responsibility of the buyer or seller, but excluding any taxes pay- able by Company with respect to its net income.
4.3. Company or its agent may select any commercial air, ship, motor or rail carrier or any combination thereof for the transportation of the Products and will notify Customer thereof at the time Customer places each Order. Company will make deliveries of the Products in the quantities ordered as near as reasonably possible to Customer‘s requested delivery dates.
4.4. Company shall use its reasonable efforts to deliver the Products to Customer by the agreed upon date. However, except in cases of Company’s willful misconduct or gross negligence, Company shall not be liable to Customer for delays in delivery or damage to the Products while in transit, irrespective of whether Company or Customer determined the mode of transportation.
5. Limitation of Liability:
5.1. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL OR USE, INCURRED BY CUSTOMER OR ANY THIRD PAR- TY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY STATU- TE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2. NOTWITHSTANDING THE TERMS AND CONDITIONS SET FORTH IN SECTION 6.1., COMPANY’S LIABILITY – WHETHER BASED UPON CONTRACT, TORT, EQUITY, NEGLIGENCE OR ANY OTHER LEGAL CONCEPT – SHALL IN NO EVENT EXCEED THE VALUE OF CUSTOMER’S ORDER, AS DESCRIBED ON THE ORDER FORM, OR THE ORDER VALUE FOR (1) CALENDER YEAR, WHICHEVER AMOUNT IS LOWER. IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN COMPANY AND CUSTOMER, THAT COMPANY’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
5.3. IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLI CABLE LAW. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, COUNTRY OR OTHER JURISDICTION.
6. Force Majeure:
6.1. Company shall not be liable to Customer or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.
6.2. Customer shall not be liable to Company or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.
6.3. When the event operating to excuse performance by either party shall cease, this Agreement shall continue in full force until all deliveries have been completed.
7. Miscellaneous Terms:
7.1. This Agreement and all claims arising out of or related to this Agreement, including tort claims, shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than New York. The application of the Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
7.2. Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be exclusively settled by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The award shall be final and binding. Judgment upon the award rendered by the arbitrator or the arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be held in New York, New York, shall be conducted in the English language, and shall be conducted (i) if the amount in dispute is less than two hundred fifty thousand dollars ($ 250,000), before a single arbitrator mutually agreeable to Company and Customer, or if no agreement can be reached, then selected by the AAA, or (ii) if the amount in dispute is two hundred fifty thousand dollars ($ 250,000) or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney’s fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. In addition, the losing party shall reimburse the prevailing party for reasonable attorneys’ fees and disbursements, the costs of the arbitration (including but not limited to the fees and expenses of the arbitrator and expert witnesses) and the costs incurred by the prevailing party in successfully seeking any preliminary equitable relief or judicially enforcing any arbitration award.
7.3. If any provision contained in this Agreement is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
7.4. In the event of a violation or threatened violation of Company’s proprietary rights, Company shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Company would suffer irreparable harm.
7.5. The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties.
7.6. This Agreement shall apply to all sales of the Products to Customer.
7.7. This Agreement, including any Schedules attached hereto, contains the entire agreement of the par- ties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns.
GENERAL TERMS AND CONDITIONS OF USE
Tara Misu LLC (collectively "us" or "we"), is the operator and host of the www.maryjanemix.com website (the "Site"). This document sets forth the terms and conditions ("Terms and Conditions") governing your use of the Site. The Terms and Conditions apply only to this Site and do not apply to websites that are linked to the Site. For access to the terms and conditions of linked websites, please refer to the home pages of such websites. The Terms and Conditions are subject to change at any time by us by posting them on the Site. It is your obligation to review the Terms and Conditions from time to time. Any changes to the Terms and Conditions will be effective immediately upon posting to the Site.
Your use of the Site indicates your acceptance of these Terms and Conditions. If you do not accept these Terms and Conditions, you may not use the Site. Your continued use of the Site will constitute your agreement to the most current version of these Terms and Conditions. If at any time you do not agree to these Terms and Conditions, you must cease your use of this Site. If after reviewing the Terms and Conditions you have any questions or concerns regarding the contents thereof, please contact us by sending an email to email@example.com.
These Terms and Conditions govern your use of the Site and the information and services made available on and through the Site.
I. TERMINATION OF ACCESS
The use of this Site and its services is a privilege. We reserve the right to suspend your use of this Site for any reason at any time, in our sole discretion.
For the purposes of these Terms and Conditions, the following definitions apply:
"Content" includes all Text, Graphics, Design and Programming used on the Site.
"Text" includes all text on every page of the Site, whether editorial, navigational, or instructional.
"Graphics" includes all logos, buttons, and other graphical elements on the Site, with the exception of paid advertising banners.
"Design" includes the color combinations and the page layout of the Site.
"User" refers to any individual who uses any aspect of the Site or its services.
"You" refers to the person accessing the Site and agreeing to these Terms and Conditions.
III. INTELLECTUAL PROPERTY RIGHTS
All Contents on the Site is the sole property of iVintage.net ("iVintage.net") or its respective owners, as indicated, and is protected by U.S. copyright and international treaties. iVintage.net authorizes you to view and download a single copy of the Content on the Site solely for your personal, noncommercial use. You may not reproduce, modify, display, sell, or distribute the Content, or use it in any other way for public or commercial purpose. The foregoing limitations include, but are not limited to, copying or adapting the HTML code used to generate web pages on the Site, as well as any Graphics.
The "look" and "feel" of the Site (including color combinations, button shapes, layout, design and all other graphical elements) are also protected by U.S. copyright law. All product names, names of services, trademarks and service marks ("Marks") are the property of iVintage.net or the property of their respective owners, as indicated. You may not use the Marks for any purpose whatsoever other than as permitted by these Terms and Conditions.
IV. ACCEPTABLE USE OF THE SITE
The Site and its services are intended to facilitate the offering for sale of clothing and products of third parties. The Site may be used in a manner consistent with this purpose, and only within the context of the products, services and information set forth on the Site. The information displayed on the Site may not be used for any purpose except in connection with your direct use of the Site as permitted by these Terms and Conditions, and may not be excerpted, summarized, duplicated or otherwise removed from the Site. In addition, you represent, warrant and agree that you will not use (or plan, encourage or help others to use) the Site for any purpose or in any manner that is prohibited by these Terms and Conditions or by applicable law. Your use of the Site is also subject to the following restrictions:
a. You may not send unsolicited commercial email to Users. In addition, spam, chain emails, advertising solicitations and similar email solicitations are expressly prohibited;
b. You may not delete, edit or revise any material posted by any other person or entity. You may not copy, duplicate, download or otherwise use any material posted by any other person or entity except for the purposes permitted by these Terms and Conditions.
c. You may not interfere with the proper operation of the Site including, but not limited to, by attacking, hacking into, or otherwise attempting to penetrate any non-publicly accessible elements of the Site, through the use of bots, Trojan Horses, viruses, DNS attacks, or other technology which is designed or intended to interfere with the proper operation of the Site or the use of the Site by any Users.
V. LIMITATIONS ON INFORMATION SUBMITTED
Any submission of information to us through the Site is subject to the following guidelines and restrictions:
a. It may not contain URLs or links to any Internet Web sites (To advertise your company or Web site, contact our Sales department);
b. It may not contain copyrighted material (unless you own the copyright or have the owner's permission to post the copyrighted material);
c. It may not contain trade secrets (unless you own them or have the owner's permission to post them);
d. It may not contain material that infringes on the intellectual property rights of others, including but not limited to, copyright, trademark, patent, or trade secret rights;
e. It may not contain material that is sexually explicit, obscene, libelous, defamatory, threatening, harassing, abusive, or hateful;
f. It may not contain information that is known by you to be untrue, false or misleading or which does not fairly or accurately depict or describe the subject matter which is the subject of the information posted by you;
g. It may not present information which impersonates another person, whether living or dead, misstate the identity of any person, or misstate or mislead as to gender or age;
h. You may not solicit money, investments or make any offering of securities or investments;
i. You may not submit chain letters or pyramid schemes;
j. You may not submit opinions or notices, commercial or otherwise;
VI. MONITORING OF INFORMATION
We do not assume any obligation to review the accuracy, completeness, truthfulness or content of any information submitted to the Site. User assumes the risk of verifying the accuracy of information posted through independent investigation. Notwithstanding, we may in our discretion review information submitted to the Site for any purpose whatsoever and we reserve the right, in our sole discretion, to reject any information submitted to the Site for any reason whatsoever.
VII. RIGHTS TO INFORMATION
VIII. SECURITY RULES
To ensure the security of the Site and of Users, the following security rules govern your use:
a. Protect Your Password
You are responsible for maintaining the confidentiality of your information and password, and you are responsible for all uses of your registration, whether or not authorized by you. In the event you lose your password or become aware of misuse or unauthorized use of your password, it is your obligation to immediately notify us. We shall have no responsibility for loss or misused passwords or for unauthorized access occasioned by the foregoing.
b. Prohibited Uses:
(i) Accessing data not intended for you or logging into a server or account which the you are not authorized to access;
(ii) Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
(iii) Attempting to interfere with service to any User, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, "flooding", "mailbombing" or "crashing";
(iv) Sending unsolicited e-mail, including promotions and/or advertising of products or services;
(v) Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
Violation of these security rules may result in civil or criminal liability in addition to the termination of your access rights. We will investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.
IX. TERMINATION OF ACCESS TO THE SITE
Users who violate these Terms and Conditions may be denied access to the Site at our sole discretion.
X. DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY
Your agreement to the following disclaimers and limitations are a material inducement for us to permit you to access the Site. Your use of the Site, and the obligations and liabilities of us in respect of your use of the Site, is expressly limited as follows:
a. Conduct of Users
We assume no responsibility for the activities or conduct of Users.
b. Third Party Information
The Site displays the content, services, products or hyperlinks of other companies or persons. Notwithstanding the presentation of any third party information on the Site, no such presentation shall be considered an endorsement, representation or warranty, either express or implied, by us on behalf of any third party. In addition, we do not endorse, warrant or otherwise guarantee the substance of any information posted by Users or third parties on the Site. We shall have no liability or responsibility whatsoever for the content, subject matter or substance of any information accessed or obtained from third party websites accessed from the Site. Access to third party websites from the Site is done at your own risk. We do not warranty any products purchased through the Site or purchased in reliance on information obtained from the Site. Warranties on purchased products, if any, are provided by the product's manufacturer.
c. Accuracy of Information
We make no representations or warranties regarding the truthfulness, accuracy, completeness, timeliness or reliability of any information submitted by Users, or of any other form of communication engaged in or information exchanged by Users. Information on the Website may contain inaccuracies or typographical errors. You acknowledge that any reliance on information submitted by Users or on any other form of communication with Users will be at your own risk.
d. DISCLAIMER OF WARRANTIES
THE SITE IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY WHATSOEVER. WE DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
You agree to indemnify, defend and hold us harmless from and against any and all liability, claims, causes of actions, damages, costs and expenses, including but not limited to, attorneys fees and costs of suit, arising out of your breach of these Terms and Conditions.