The following are the Terms and Conditions under which Fuerte Cases, The Waterproof Case Company LLC, and affiliates (collectively herein, “Seller”) sells its Products in the United States of America.
1. Terms and Conditions. These Terms and Conditions (collectively herein, “Terms”) shall apply to purchase orders issued and accepted or other contractual commitments to buy and sell Seller’s products (collectively, “Orders”). Seller hereby gives notice of its objection to any different or additional terms that may be included by the person, firm, corporation or other business entity that places an Order (hereafter, “Buyer”). These Terms will become a binding contract only when a written or electronic acceptance of an Order is sent to Buyer by Seller. If Buyer has not otherwise accepted these Terms and Conditions, Buyer’s acceptance of any products delivered by Seller pursuant to any Order shall constitute Buyer’s acceptance of these Terms with respect to such Order. These Terms shall govern each Order notwithstanding any different, conflicting or additional terms and conditions which may appear on any form submitted by Buyer or communicated as “policy” or informative material by Seller on a website, in literature, or other printed material. No modification of these Terms, including any waiver of or addition to any of the Terms, shall be binding upon Seller, unless made in writing and signed by Seller’s authorized representative.
2. Prices, Quotations, Errors and Omissions. Seller’s prices for stock products are subject to change without notice. Prices payable under an Order for stock products shall be based on Seller’s published prices in effect at the time Order was placed, provided the ship date is within 30 days of date Order was placed. Prices for custom products or volume quotes shall be stated in Seller’s quotation and are valid for thirty (30) days from the date of the quote. Notwithstanding the above, Seller reserves the right to correct clerical errors and omissions on quotations, sales orders, invoices and other forms. Prices are exclusive of all sales, use and like taxes. Any tax Seller may be required to collect or pay upon the sale or delivery of Products shall be for the account of Buyer, who shall promptly pay the amount thereof to Seller or the taxing authority as required.
3. Payment Options and Credit Terms. Buyer may pay by Cash, Check, Bank/Wire Transfers, or accepted Credit Cards. International orders must be prepaid, and any and all customs, duties, and brokerage fees are the responsibility of the Buyer. Custom and Special Orders must be prepaid and may require prepayment before production commences. Seller’s credit terms for stock product orders are net thirty (30) days from the date of the invoice for Buyers who have an established account with Seller, which shall be approved by Seller in its sole discretion. If Buyer fails to make payments in accordance with Seller’s terms, then Seller reserves the right to change or terminate account terms, to refuse to deliver any product to Buyer except upon payment in cash, defer further shipments until such payments are made, or at seller’s option, cancel unshipped balance of any Order, and seek other remedies in equity or law. If Buyer is approved for terms and fails to make payments as required herein, Buyer shall pay interest at the rate of 1.5% per month on the unpaid balance, together with the cost of collection and attorneys’ fees incurred for collecting the past due debt.
4. Delivery, Shipping & Title. Seller will make all reasonable efforts to adhere to requested shipping and delivery dates. Seller shall not be liable for any damages, loss or expense of Buyer for failure to meet any shipping or delivery date for any reason whatsoever. All orders are shipped FOB San Diego, California USA or from a supplier distribution facility (whichever is applicable) unless otherwise specified by Seller. Shipping charges and insurance are additional and payable by Buyer. Buyer shall make all arrangements with an appropriate carrier to receive and transport the products to the destination specified by Buyer and incur shipping charges and insurance. Title and Risk of loss to the Product shall pass to Buyer upon delivery to the carrier at Seller’s point of shipment. If Seller agrees to arrange for a carrier for the delivery of an Order, the cost of the carrier and insurance (upon Buyer’s value declaration, if any) shall be added to the otherwise applicable invoice as a charge to Buyer, and risk of loss for the products will still pass to Buyer upon delivery to the carrier. Any damaged freight claim must be made directly to carrier and shall be documented with the carrier at the time of delivery. Standard product packaging and packing methods selected by Seller will be used unless otherwise agreed in writing and signed by both parties. Additional packaging and packing costs incurred at Buyer’s request shall be payable by Buyer and added to the applicable invoice.
5. Cancellation. Any Order may be cancelled by Seller upon Buyer’s breach or repudiation thereof for any reason, including bankruptcy, reorganization or insolvency or appointment of a receiver or any assignment for the benefit of creditors and without regard to materiality of such breach or repudiation, provided such breach shall not be cured or such repudiation is not retracted, within five (5) days after Seller provides written notice thereof to Buyer. Orders for stock products shall be terminable by Buyer on written notice received prior to delivery by Seller to the carrier for shipment. A Custom Order or Special Order cannot be cancelled by Buyer once a written or electronic acceptance of the Order is sent to Buyer by the Seller.
6. Returns and Exchanges. Returns, exchanges or requests for credit or refunds are subject to the following conditions and limitations. Any return, exchange or request for a refund must be for unused and undamaged stock products and must be made within 30 days of invoice date. When the total invoiced amount of Order is less than One Thousand US Dollars ($1000.00), a preauthorized (RM#) form and instructions for return is included with delivery, and Buyer does not need to call for approval to return or exchange unused and undamaged stock product(s) in original packaging within 30 days of invoice. With respect to all other Orders, no returns will be accepted without Seller’s prior approval and authorization (RMA#). Shipping charges on all returns must be prepaid by the Buyer to Seller’s California location. Returns not clearly marked with RMA # or shipped C.O.D. will not be accepted. Products returned in original unopened cartons are subject to a 15% re-stocking fee. Products returned in other than original boxes and packaging are subject to additional charges for inspection and re-packaging. Buyer is responsible for products damaged during return shipping as a result of improper packaging and losses for failure to insure. A refund or credit will be issued for net cost of goods after inspection and determination of the condition of the returned product. Special Orders, Custom Orders and/or products otherwise modified by or for the Buyer are non-refundable. Claims for damage, defects, shortage and non-conformance are subject to the Remedies herein below.
7. Limited Warranty and Remedies. Seller warrants to Buyer that at the time of delivery for shipment (a) stock products delivered hereunder shall be free of defects in workmanship and material and conform to any product description that are made a part of the Order and the product manufacturer’s descriptions/warranties (Seahorse, Pelican, SKB, S3, UK etc.) and (b) a Custom Product Order delivered hereunder shall conform to any Buyer specifications that are made a part of an Order and accepted by Seller in writing. Seller has based any recommendations to Buyer for the use of a Product upon information that Seller considers reliable, but Seller makes no warranty as to any results Buyer might obtain in Buyer’s use(s) for any Product or Customization of any Product. Seller makes no other warranties extending beyond the description of the Product, whether used alone or in combination with any other item, modification, or process. Except as provided in the preceding sentences, Seller makes no warranty regarding Products delivered hereunder (other than warranty of good and free title) and disclaims any and all other warranties express or implied, whether created by contract or by operation of law, including but not limited to warranties of merchantability and fitness for a particular purpose. The warranties made herein are made solely to Buyer and shall not extend to or be assignable to Buyer’s customers, including but not limited to any customer who may be a consumer as that term is defined under the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act.
Buyer will examine Product promptly after receipt for damage, defects, shortage, errors, omissions, and non-conformance and must give Seller written notice of the existence of each claim involving Product within ten (10) days after receipt of the Product forming the basis for the claim. A failure by Buyer to give such notice within the time constraint will constitute an absolute and unconditional waiver of all such claims. If any Product delivered hereunder fails to conform to the foregoing warranty, and such product (or non-conforming part thereof) is returned to Seller by Buyer, then Seller, at Seller’s sole option, shall repair or replace such product (or non-conforming part) and make such repaired or replacement product available for shipment to Buyer. Seller’s obligation to repair or replace Product is expressly conditioned on (a) Buyer obtaining written return authorization from Seller prior to returning such non-conforming product and (b) Seller’s receipt of such non-conforming product within 20 days of having communicated authorization to Buyer for return. Additionally, Seller’s remedial obligations shall be excused if the product (or part) has been subject to alteration, misuse, abuse or improper storage by Buyer. Unless Seller expressly agrees in writing, no set-off, allowance, or credit shall be allowed for any non-conforming product, as the repair or replacement remedy as set forth in this paragraph shall be Buyer’s sole and exclusive remedy for non-conforming products delivered hereunder. Seller’s entire liability to Buyer for damages, whether under breach of warranty or any other cause whatsoever and whether under this contract or otherwise, shall in no event exceed that part of the purchase price applicable to the portion of Product giving rise to Buyer’s claim(s). Except to the extent attributable to the Product failing to meet the limited warranties set forth herein, Buyer will indemnify, defend, and hold Seller harmless from all costs, expenses, damages, judgments or other loss including costs of investigation, litigation, and attorney’s fees arising out of Buyer’s selection, use, re-sale and/or further modification of Products sold under an Order. In no event will either party have liability to the other for any incidental, consequential, exemplary or special damages.
8. Special or Custom Product Order. The following provisions apply to Special Orders (any Order which quantity requires specific manufacturing to meet the demand) and Custom Orders. When an Order calls for Seller to modify any stock Product(s) specifically per Buyer’s request and instruction, said modifications (e.g. watertight seals, machining, foam inserts, labels, color etc.) shall be identified herein as a Custom Order and alternatively as “Customization”. Unless otherwise specified in writing signed by authorized parties and paid for in full by Buyer, all tools, dies, patterns, and so forth shall remain the property of Seller. Seller may make suggestions regarding choice of product, design, construction and material selection; however Seller shall not be liable or responsible for any loss, cost, or damage resulting from Buyer’s use of any such suggestions. Buyer acknowledges that such Customization may be based on technical information and drawings provided by Buyer to Seller, and Buyer agrees not to assert any claim against Seller with respect to any such technical information or drawing Buyer may have disclosed to Seller. Seller shall comply with all specifications, drawings, quality requirements, and procedure as specified and agreed to in writing by the parties, but once Buyer has agreed in writing to the design of the Customization, Buyer shall be solely responsible for the proper form, fit and function of the Custom Products. Seller shall have no liability to Buyer, and without limiting Buyer’s obligations as stated elsewhere herein, Buyer shall indemnify and hold Seller harmless from, any claims, including but not limited to claims of third parties, arising out of or in relation, in any way, to the Customization or the products sold incorporating such Customization, whether based on patent, trademark, copyright, defective design, product liability, and whether arising out of contract, tort or strict liability, except to the extent such claim arises out of negligence or willful misconduct of Seller or its employees.
9. Patent Indemnification. Without limiting Buyer’s obligations as stated elsewhere herein, Buyer shall indemnify and save Seller harmless from and against (a) any claim, suit or proceeding based on an allegation that any product furnished hereunder in compliance with Buyer’s instructions or specifications constituted an infringement of any patent, trademark, trade secret or copyright and (b) any judgment or other recovery therein. Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the Product (stock or customized) in combination with other products, substances or in the operation of any process.
10. Limitation of Liability. In no event shall seller be liable for any indirect, incidental or consequential damages arising out of the manufacture, delivery or use of any Order or the Products sold thereunder, or the manufacture, delivery, or use of any Products offered on Seller’s websites or by literature, received via U.S. mail, email, data file, or fax, whether arising in contract, tort or otherwise, including strict liability, whether at law or in equity, including but not limited to, liability for intellectual property infringement and product liability claims. In no event shall Seller’s aggregate liability to Buyer with respect to any product delivered pursuant to any order exceed the aggregate compensation payable to Seller hereunder for the items and Products coved by such order.
11. Force Majeure. Neither Buyer nor Seller shall be liable to the other for any failure to perform, or delay in the performance of any obligation hereunder (except obligation by Buyer to pay amounts on Products received to date) to the extent such failure or delay is due to causes beyond the reasonable control and without the fault or negligence of the party whose performance is prevented or delayed, provided that the party whose performance is prevented or delayed (a) provides prompt written notice to the other of such circumstances, and (b) makes reasonable efforts to perform or complete performance hereunder despite the impediment to performance. Without limiting the generality of the foregoing language, such causes shall include fire, storm, flood, acts of God, war, acts of terrorism, shortages, or inability to secure transportation, machinery; compliance with Federal, state, municipal or military law, regulation, order or rule, foreign or domestic; or any other cause or causes of any kind or character reasonably outside the control of the party failing to perform. During periods when demand for products exceeds Seller’s available supply, whether due to a force majeure or otherwise, Seller may distribute products among its customers and Buyer in such a manner as Seller deems fair and practicable, and Buyer will accept, as full and complete performance by Seller, deliveries in accordance with such determinations as Seller may make. If not satisfied with Seller’s determination, Buyer as its sole remedy shall have a right to terminate any outstanding purchase orders without further obligation upon (a) 10 days written notice; and (b) payment for all Products received to date by Buyer.
12. UN Convention The United Nations Convention respecting Contracts for the International Sale of Goods shall not apply to transactions under these Terms.
13. Government Regulations. Manufacture, shipment, and delivery are subject to any current or future prohibition, restriction, priority, allocation, regulation or condition imposed by, or on behalf of The United States of America.
14. Severability In the event of any provision of these Terms is held invalid under any applicable statute or rule of law, then to the maximum extent permitted by law, such provision shall be deemed severable from these Terms and the remainder shall continue in full force and effect. Notwithstanding the above, such invalid term or condition shall be construed, to the extent possible, in accordance with the original intent of the parties.
15. General Provisions and Applicable Law. These Terms and any Order or sale of Products hereunder shall be governed by and construed in accordance with the laws of the State of California, USA, notwithstanding any choice of law provision that might apply the laws of another jurisdiction. Any claim or dispute arising out of an Order or the products delivered under any Order may only be brought in the state and/or federal courts located in the County of San Diego, California, and each party consents to exclusive jurisdiction in such courts. Buyer may not assign any Order or any interest therein without the prior written consent of Seller. Each Order is for the sale of goods and the relationship between the parties is that of buyer and seller. Nothing herein shall be deemed to constitute a hiring, partnership or joint venture between the parties. All rights and remedies of Seller whether conferred hereby or by any other instrument or by law shall be cumulative, and may be exercised singularly or concurrently. Failure by Seller to enforce any term or condition shall not be construed as a waiver of that or any other term or condition. The paragraph headings used herein are for reference only and shall not be used when interpreting these Terms of Sale. Seller expressly reserves the right to modify the Terms of Sale at any time by posting a revised version on the FuerteCases.com website. The modified terms will become effective upon posting on the Seller’s website and shall supersede all prior versions. By placing an Order after the effective date of any modification to these Terms, the Buyer shall be bound by the terms set forth in the revised version with respect to such Order submitted after the effective date. Each Order and these Terms constitute the entire agreement between Seller and Buyer with respect to each Order and supersede all proposals, oral and written, all previous negotiations, and all other communications by and between the parties.