All sales of goods by Midtown Liquidation (the “Seller”) are made subject to the following terms and conditions. No waiver, alteration or modification of any of the following provisions shall be binding, unless in writing and signed by an authorized representation of the Seller.
1. GOODS: The Buyer expressly acknowledges that the Seller sells liquidated, off-price distressed merchandise (the “Goods”) and acknowledges that it is purchasing the goods on a strictly “as is, where is” basis with respect to the quality, condition, fitness or merchantability of the Goods.
2. PAYMENT: Payments must be made by the Buyer to the Seller in currency shown within seven (7) days of the date of the Invoice. All Invoices not paid within seven (7) days of the date of the Invoice will be canceled and considered null and void.
3. SHIPMENTS, TITLE & RISK OF LOSS: Invoices must be paid prior to Shipment. The Buyer may direct that the Goods be picked up by the Buyer (or the Buyer’s carrier) at the Seller’s facility or request that the Goods be delivered by the Seller to the Buyer. If the Products are picked up by the Buyer (or the Buyer’s carrier) at the Seller’s facility: (i) title and risk of loss shall pass to the Buyer upon delivery of the Goods to the Buyer or its carrier at the Seller’s facility, and (ii) the Seller is not responsible for damage or loss in transit and the Buyer must make any claims for shipping loss or damage directly to the Buyer’s carrier. If the Seller expressly agrees in writing to deliver the Goods to the Buyer: (i) title and risk of loss shall pass to the Buyer upon delivery of the Goods to the Buyer, (ii) shipments will be made from points, over routes and by carriers selected by the Seller in its sole discretion,(iii) the Seller’s shipping dates are estimates only, dates of delivery are not guaranteed and the Buyer shall have no claim for damages resulting from any delay in delivery beyond the estimated delivery dates, and (iv) the Seller may make partial shipments at the Seller's sole discretion, (v) the Buyer shall bear destination demurrage and detention charges.
4. NO WARRANTY: The Seller makes no warranty, express or implied (including any warranty as to the workmanlike quality, merchantability or fitness for a particular purpose) with respect to the Goods and disclaims all conditions, representations and warranties of any kind (whether arising in contract warranty, tort or under any statute or other theory of law or equity) with respect to the Goods.
5. REFUNDS AND RETURNS: Under no circumstances shall the Buyer be entitled to any returns, refunds, credits or exchanges with respect to the Goods.
6. LIMITATION OF LIABILITY: In no event shall the Buyer be entitled to recover from the Seller, or shall the Seller be liable to the Buyer for, any incidental, consequential, special, punitive or exemplary damages or expenses, including but not limited to, loss of profits or anticipated profits.
7. CONFIDENTIALITY: The Buyer acknowledges and agrees that it shall, always, keep confidential the name of the department store, online store or known source from which the Goods originated. The Seller shall be entitled to seek damages, as well as temporary, preliminary or permanent injunctive relief for any breach of this Section by the Buyer.
8. Non-Circumvent: The Parties hereby agree that their business involves, among other activities, introducing, participating, effectuating and consummating transactions between their respective contacts, including other Parties and Affiliates (each, a "Transaction"). In consideration of the foregoing, each undersigned Party hereby irrevocably agrees and warrants that it and its Affiliates shall not, directly or indirectly, interfere with, circumvent, attempt to circumvent, avoid or bypass any Party from any Transactions between the Parties' contacts, or obviate or interfere with the relationship of any Party and its contacts for the purpose of gaining any benefit, whether such benefit is monetary or otherwise. The Parties also undertake not to make use of any third party to circumvent this paragraph.
9. GOVERNING LAW: These Conditions of Sale shall be governed by and construed under the laws of the State of California.
10. DISPUTE RESOLUTION: Any dispute in connection with the purchase and sale of the Goods or these Conditions of Sale may be resolved through binding arbitration by a single arbitration in the state of CA, in the sole discretion of the Seller. The results of any arbitration will be final. Notwithstanding the foregoing, the Seller reserves the right to invoke the jurisdiction of any competent court in CA to remedy such disputes. HE OR SHE SIGNING WILL ACT AS A PERSONAL GUARANTOR ON THE ACCOUNT IF THE ACCOUNT BECOMES DELIQUENT AND IS SUBJECT TO COLLECTIONS. BY SIGNING THIS FORM YOU SIGNIFY YOUR UNDERSTANDING OF THIS. THIS CERTIFICATE SHALL BE PART OF EACH ORDER WHICH WE MAY HERAFTER GIVE TO YOU, UNLESS OTHERWISE SPECIFIED, AND SHALL BE VALID UNTIL CANCELLED BY US IN WRITING OR REVOKED BY THE CITY OR STATE.