LONE PEAK BIOLOGICS
TERMS OF SALE
APRIL 4, 2018
THESE TERMS OF SALE (the “Agreement”) is made and entered into by and between Blue Crab Enterprises, LLC d/b/a Lone Peak Biologics (the “Company”) and each party who purchases products from the Company (each a “Purchaser”) as of the first date that Purchaser transmits an Order, as such term is defined herein, to Company and Company accepts such Order. For purposes of this Agreement, Company and Purchaser may be referred to herein each as a “Party” and together as the “Parties.” Purchaser desires to purchase certain products from Company. The purpose of this Agreement is to define the terms of such purchase.
Company is in the business of selling certain products to its customers. Such products are defined on the websites belonging to the Company (the “Products”). Company shall have the full discretion to amend its website at any time, for any reason, and such amendment may amend without limitation the purchase price of the Products or the nature of the Products available for sale to Purchaser.
In each instance where Purchaser desires to purchase Products from Company, Purchaser shall set out in writing the desired Products, desired delivery date, and desired delivery address (the “Order”). Upon receipt of each Order and payment for such Order, Company shall within a commercially reasonable time fulfill the Order or notify Purchaser that such Order will not be fulfilled. Company will make its best efforts to fulfill on the same business day Orders received prior to 1:00 pm local time at Salt Lake City, Utah, but makes no guarantees as to its ability fulfill such Orders. Company may reject any Order, for any reason, in its sole discretion.
The Company accepts only payments in full for each Order via the following methods: corporate check, cashier’s check, wire transfer, or major credit card. Payment in full is required at the time an Order is accepted by the Company and before any orders will be fulfilled. If the delivery of the Products is refused by Purchaser upon delivery or returned after Purchaser’s acceptance of such delivery, a thirty-percent (30%) disposition fee will be charged in addition to any other associated costs before the Purchaser’s request for refund is processed.
Shipping and Freight
Company will ship ordered Products one business day before the delivery date specified in each Order, excluding weekends and bank holidays. Company does not warrant a specific delivery date but if the ordered Products cannot be shipped within a period of time that accommodates the perishable nature of such Products, the Purchaser can request and will receive a full refund. The Company shall not be liable for any claims of the Purchaser resulting from non-delivery of ordered Products once such Product passes from the Company to the courier.
All ordered Products are shipped prepaid by the Company FOB Salt Lake City by the carrier of the Company’s choice. All carriers chosen for transport of ordered Products shall not be construed as agents of either Party. The Purchaser will prepay freight, insurance, applicable duties and taxes, as well as any handling charges at the time an Order is accepted by the Company. Unless otherwise specified in an Order, the Company shall be authorized to make deliveries in partial shipments if necessary due to inventory conditions. The Company will make reasonable efforts to deliver ordered Products on the date specified on the Order; however, disclaims any liability for any loss or damage incurred by the Purchaser whether directly or indirectly related to delays in delivery.
Risk of loss or damages for shipments from the Company to Purchaser by a nationally known carrier shall pass to the carrier and Purchaser once the products have left the Company (Ex-Factory). Purchaser hereby acknowledges and agrees that no provision of this Agreement transfers, assigns, licenses, or gives Purchaser temporary or permanent rights of any intellectual or industrial property right(s) (including but not limited to copyright, trade secret, trademark, or patent) in any Products of the Company.
An event of default shall occur upon the happening of any of the following events:
- Any non-payment, when due, of any portion of the purchase price of an Order or any other sum due to the Company hereunder;
- The failure of Purchaser to perform, keep or observe any of the covenants, agreements or other terms of this Agreement, or the terms of any other agreement with the Company;
- Purchaser becomes insolvent or unable to pay its debts as they mature or become due, or any proceeding is instituted by or against Purchaser alleging that Purchaser is bankrupt, insolvent or unable to pay its debts as they become due; or
- The dissolution of Purchaser or the transfer by Purchaser of substantially all of its assets.
Indemnification; Limitation of Liability
Purchaser agrees to indemnify, defend, and hold the Company harmless from and against any and all claims, damages, expenses, liabilities, and losses of any kind or nature whatsoever (including attorney fees for the defense of related claims), arising out of or in connection with the Purchaser’s use of Products supplied, including claims made by any third parties, of whatever kind, relating to such use. This clause is not to be interpreted as unconscionable or a broad waiver of liability for the Company but an assumption of risk on the Purchaser for its sole control over the application.
In no event shall the Company be liable to Purchaser hereunder or in respect of any Products ordered or delivered to Purchaser, whether in contract or not, for a loss of profits or loss of use or for any incidental, consequential, special, or indirect damages howsoever caused whether or not the Company has been advised of the possibility of such loss or damage. The Company’s maximum liability to Purchaser under this Agreement shall not exceed the amount paid by Purchaser for the Products which are the subject of the claim and in respect of a claim for Products ordered from the Company to which these conditions apply the amount paid by Purchaser for the Products which are the subject of the claim; provided that nothing herein shall exclude or restrict the Company’s liability for death or personal injury arising from the negligence of the Company or its employees while acting in the course of their employment.
TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES THAT MAY BE APPLICABLE TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
Purchaser shall not assign or transfer or purport to assign or transfer its interest in Agreement. The Company may assign its interest in this Agreement. This Agreement shall be binding and inure to the benefit of the parties and their respective successors and assigns.
This Agreement shall be governed by the laws of the State of Utah, without giving effect to the conflicts of law provisions thereof. All cases and claims made by either Party, of whatever kind, under this Agreement shall be brought in the appropriate court located in Salt Lake County, Utah, and such courts shall have exclusive jurisdiction over such cases and claims. Each Party irrevocably consents to jurisdiction in such court and hereby agrees to waive any jurisdictional objection thereto, including without limitation, forum non conveniens.
Company may, from time to time, amend this Agreement upon reasonable advance notice to Purchaser. Purchaser’s continuing Orders after the effective date of such amendment shall serve as acceptance of such amendments. All other amendments to this Agreement must be made in writing and executed by both Parties.
This Agreement, together with each Order, constitutes the entire agreement between the Parties regarding the matters contained herein.
The waiver by either Party of a breach of any provision of this Agreement shall not enlist or be construed as an amendment or waiver of any other clause, which all will remain in effect if one or more is disputed.