Terms of Service
TERMS AND CONDITIONS AGREEMENT (“AGREEMENT”)
1. PARTIES: Barbarita Liquor Store, LLC, will be referred to as “Seller” and the business entity, or company purchasing as indicated on the front hereof will be referred to as “Buyer.”
2. PAYMENT TERMS: Buyer understands and agrees to pay all charges upon delivery on a C.O.D. basis. There are no credit terms.
3. NO RETURN POLICY: All sales are final. There are no returns or credits allowed or permitted.
4. PRICE ADJUSTMENTS: The prices stated herein do not include any sales, use or other taxes unless so stated specifically. Such taxes will be added to invoice prices in those instances in which Seller is required to collect them from Buyer; provided, however, that if Seller does not collect any such taxes and is later required to pay such taxes to any taxing authority, Buyer will make such payment to Seller or, if requested by Seller, directly to such taxing authority. At Seller’s option, prices may be adjusted to reflect any increase in the Seller’s costs resulting from state, federal, or local legislation, or any change in the rate or classification of any freight carrier.
5. EXCLUSIONS OF WARRANTIES: BUYER UNDERSTANDS AND AGREES THAT UNLESS A SEPARATE AND DISTINCT WARRANTY IS SPECIFICALLY PURCHASED FROM THE SELLER, THE PRODUCT IS PURCHASED FROM THE SELLER IN AS IS CONDITION. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED BY SELLER FROM THIS TRANSACTION AND SHALL NOT APPLY TO THE PRODUCT. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING LOSS OF USE, RESULTING FROM OR ARISING IN ANY WAY OUT OF THIS TRANSACTION OR THE PURCHASE, USE, LOSS OF USE, LOST PROFITS.
6. COLLECTION FEE; ACTIONS; ATTORNEY FEES; VENUE: The Buyer agrees to pay all costs of collection, including attorneys fees and costs both at the trial level and at all appellate levels. The Buyer irrevocably consents and submits to the jurisdiction of the Courts of the 11th Judicial Circuit of the State of Florida and the Courts of the Federal District of the United States of America sitting in Miami-Dade County, Florida for the purpose of litigation between the parties. Venue for any litigation concerning this Agreement shall be Miami-Dade County, Florida. Buyer also agrees not to bring any action or proceeding against Seller in any other Court. Buyer waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought.
7. CONTINGENCIES: Seller shall not be liable for any default or delay in performance if caused directly or indirectly, by acts of God; pandemic, disease, war; force of arms; fire; the elements; riot; labor disputes; picketing or other labor controversies; sabotage; civil commotion; accidents; any governmental action; prohibition or regulation; delay in transportation facilities; shortage or breakdown of or inability to obtain labor, material, product, or equipment used in products or seafood covered hereby.
8. BUYERS OBLIGATION, RIGHTS OF SELLER: If Seller (in its sole discretion) shall at any time doubt Buyer’s financial ability to complete a transaction Seller may decline to make shipments. If Buyer fails in any way to fulfill the terms and conditions on the front or back hereof, Seller may defer further shipments until such default is corrected.
9. CANCELLATIONS: After acceptance of a sales order by Seller the sales order shall not be subject to modification or cancellation except with Seller’s written consent. A twenty (20%) percent restocking charge shall be paid by Buyer to Seller.
10. LIMITATION OF ASSIGNMENT: The Buyer may not assign any of its rights or obligations hereunder without the prior written consent of the Seller.
11. ENTIRE AGREEMENT: This Agreement contains the entire agreement between Seller and Buyer and constitutes the final, complete and exclusive expression of the terms of the agreement. Any modifications or amendments may only be made by a written instrument signed by one of the Seller’s corporate officers.
12. SEVERABILITY: In the event that any word, phrase, clause, sentence or other provision hereof shall violate any applicable statue, ordinance or rule of law, such provision(s) shall be ineffective to the extent of such violation without invalidating any other provisions hereof.
13. GOVERNING LAW: This Agreement and the sales of any product hereunder shall be governed by and construed in accordance with the laws of the State of Florida. Whenever there is a conflict of laws, the laws of the State of Florida shall prevail.
4. CONFIDENTIALITY: The Buyer understands that the terms of this Agreement and all sales, prices, and terms for any transactions between the parties are confidential for the benefit of the Seller and that a violation or breach of confidentiality will cause damages to the Seller. Buyer agrees that it will not disclose, divulge, reveal, report or use, for any purpose, any confidential information with respect to the business of the Seller. This obligation will survive indefinitely upon termination of this Agreement.
15. PERSONAL GUARANTY: Guarantor hereby jointly and severally (if more than one), absolutely, irrevocably, and unconditionally personally guarantees, as surety, to Seller and its successors and assigns the prompt and full payment (and not merely the ultimate collection) and performance of all obligations of Buyer to Seller, now existing or hereafter arising. The obligation of the Guarantor is primary, absolute, unconditional, and unlimited. The Guarantor agrees that if Buyer fails to fully and timely perform any obligation, the Guarantor will fully and timely perform the obligation without resort by Seller to any other person or entity. In the event of any default by Buyer of any term of this Agreement, the Guarantor agrees to pay on demand (either oral or written) any and all sums due to Seller, from Buyer without Seller, first being required to notify the Guarantor of default or to otherwise take any other action. This is a guaranty of payment and not of collection and the Guarantor further waives any right to require that any action be brought against Buyer or any other person or to require that resort be first had to any security. Failure of Seller, to insist upon strict performance or observance of any terms or provision will not be construed as a waiver or relinquishment for the future of any terms, or provisions thereof, but as to the Guarantor, the same will continue to remain in full force and effect. Receipt by Seller, of payment or payments with knowledge of the breach of any provision or any indebtedness shall not be construed as a waiver of any such breach. In the event of any litigation to enforce the terms of this personal guaranty, the prevailing party shall be entitled to an award of attorneys fees and costs including all attorneys fees and costs incurred in any appeals. The Guarantor agrees that all rights and obligations arising under this Personal Guaranty shall be construed in accordance with the laws of the State of Florida without regard to conflicts of law rules. The Guarantor agrees to submit to the personal jurisdiction of the Courts of the State of Florida and further agrees that venue of any cause of action will lie in Miami-Dade County, Florida.