TERMS OF SALE
1. MudPaint Standard Terms & Conditions of Sales are as follows:
The following are the terms and conditions under which MudPaint sells or authorizes the sale of its products. “Product” is all items for sale by MudPaint. These terms shall govern the sale of Product by MudPaint. Any offer by MudPaint and any acceptance of such an offer by Buyer are limited to these terms only. MudPaint’s acceptance of any offer is expressly made conditional on assent to these terms. MudPaint objects to any additional or different terms and any such terms, however and whenever received, are hereby expressly rejected.
2. AGREEMENT OF PURCHASE AND SALE.
Pursuant to the terms and conditions of this Agreement, the Seller agrees to transfer ownership and deliver possession to the Buyer, and the Buyer shall pay for and accept from the Seller, the Products listed in www.MudPaint.com hereto, in such amounts and at such prices as agreed on the authorized website. All sales are final with the exception of Defective Products as noted in Section 10 of this agreement.
The Seller shall sell the Products to the Buyer at the prices specified in the current price list on the website. The price of each Product includes packaging costs. Buyer is responsible for all freight, applicable taxes, customs duties, export duties, or similar tariffs or fees that the Seller may be required to pay or collect in connection with the performance of its obligations under or in furtherance of this Agreement. The Buyer will not be charged for insurance on or storage of the Products.
4. PAYMENT TERMS.
Payment is due at the time of purchase and before the product is shipped.
5. SELLER’S REPRESENTATIONS AND WARRANTIES.
The Seller hereby represents and warrants to the Buyer as follows:
(a) The Seller is the sole owner of the Products, and the Products are now, and will be at the time of delivery, free and clear of all liens, charges, and encumbrances.
(b) The Seller has full right, power, and authority to sell the Products.
(c) Neither the Products nor the manufacturing process thereof infringe or will infringe the intellectual property rights or any other rights of any third party.
(d) As of the Effective Date, the Seller neither knows nor has reason to know of the existence of any outstanding title or claim of title hostile to the rights of the Seller in the Products.
(e) The Seller is not bound by any warranty, representation, or affirmation outside the scope of this Agreement concerning the Products by any of its agents, employees, or representatives.
(f) The Products will conform to the description and specifications made by the Buyer and are free from defects in material and workmanship.
(g) USE OF BRAND AND ETHICS
The Seller agrees to immediately notify the Buyer in writing if any facts or circumstances arise that would make any of the representations in this Agreement inaccurate.
6. BUYER’S REPRESENTATIONS AND WARRANTIES.
The Buyer hereby represents and warrants to the Seller that:
(a) The Agreement constitutes a legal, valid, and binding obligation enforceable in accordance with its terms. Buyer will not sell paint online. Seller retains the sole right to selling online.
(b) In the event that Buyer disposes of any Products purchased by Seller, Buyer will dispose of all Products consistent with local laws where the Products are disposed of.
(c) Any taxes or other governmental charges imposed on the sale of the Products under this Agreement shall be paid by the Buyer. Any buyer without a valid resale number will be billed for the taxable dollar amount on each order.
(d) Buyer will act with high ethical standards under any law and will not perform any acts that would cast an unfavorable light upon the Seller. This includes, but is not limited to use of Seller’s brand and standard business conduct.
The Buyer agrees to immediately notify the Seller in writing if any facts or circumstances arise that would make any of the representations in this Agreement inaccurate.
The Seller shall use its standard packaging on the Products and shall set forth the Buyer’s order number, contents, and weight on each package. All Products shall be properly packed for shipping.
8. DELIVERY OF PRODUCTS / SHIPPING.
(a) Date of Delivery. The Buyer shall have the right to specify the date of delivery, which shall be during normal business hours. Unless otherwise agreed by the Parties in writing, the delivery date shall be any date within 3 days of the Buyer’s specified date. The Seller shall give the Buyer reasonable notice of the pending delivery of the Products. No free shipping on wholesale orders.
(b) Location of Delivery. The Seller shall deliver the Products to a location designated by the Buyer (the “Delivery Point”)
(c) Notice. As soon as the Products are shipped to the Delivery Point, the Seller will send notification of such shipment to the Buyer in a commercially reasonable time and list the dates and times at which the Buyer may take delivery after inspection.
(d) Risk of Loss. The Seller assumes responsibility for the Products, and all risk of damage, loss, or delay of the Products, until the Products are delivered to or collected by the Buyer at the Delivery Point. Once the Products have been delivered to or collected by the Buyer at the Delivery Point, the Buyer assumes all responsibility for and risk of damage to such Products.
Title (ownership) in and to the Products shall pass from the Seller to the Buyer when the Buyer receives the Products from the Seller.
10. DEFECTIVE PRODUCTS REPLACEMENT OR REPAIR.
The Seller shall, at its own cost, replace any product or part of such Products that prove to be defective (each a “Defective Product”). The Seller shall bear all freight costs of repairing and/or replacing any Defective Product. The buyer will obtain a Return Merchandise Authorization (RMA) number from Seller before returning any Defective Product or, if authorized, disposing of the Defective Product. The Buyer will be assumed to have accepted the Products unconditionally unless a claim that a Product is a Defective Product is made within seven (7) days from the date of delivery. Once Products have been accepted no RMAs will be issued.
Buyer is responsible to store the Products at normal room temperatures. RMAs will not be issued for Products damaged due to storage temperatures.
11. INTELLECTUAL PROPERTY.
The Buyer will use the Seller’s trademark or trade names both on the Products and in the advertising for the Products. The Seller will cooperate with the Buyer’s marketing, advertising, and packaging personnel to coordinate use of the Seller’s trademarks or trade names, and any other text that mentions the Seller. The Buyer is not entitled, either by implication or otherwise, to any title or interest in any trademark, trade name, logo, design, or copyright developed by the Seller in connection with the Products.
The Buyer shall at all times indemnify, defend and hold harmless the Seller against all claims, actions, damages, losses, liabilities, and expenses, including reasonable outside attorneys’ fees, arising out of or caused by any breach of any of the representations, undertakings, or agreements made by the Buyer under or pursuant to this Agreement or the use of MudPaint Products.
13. FORCE MAJEURE.
The Seller and the Buyer shall not be considered in default hereunder or be liable for any failure to perform or delay in performing any provisions of this Agreement in the customary manner to the extent that such failure or delay is caused by any reason beyond its control, including any act of God, fire, manufacturing delays, explosions, hostilities, or war, declared or undeclared, strike or work stoppage involving either Party’s employees, or governmental restrictions; provided, however, that the Party declaring force majeure shall give prompt written notice to the other Party of the commencement, nature, and termination of the force majeure condition. The Party whose performance has been interrupted by such circumstances shall use every reasonable means to resume full performance of this Agreement as promptly as possible.
14. NO IMPLIED WAIVER.
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
Any controversy or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity of this Agreement shall be settled by arbitration in accordance with the rules of FAA. The arbitrator(s) shall be bound by the Agreement and shall interpret the Agreement in accordance with the applicable laws of the United States and the internal laws of the state of California. Any award, order, or judgment made pursuant to such arbitration shall be deemed final and shall be entered and enforced in any court of competent jurisdiction.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return-receipt requested) to MudPaint as follows:
If to the Seller:
13601 West McMillan Road
Boise, ID 83713
17. GOVERNING LAW.
This Agreement shall be governed by the laws of the state of Utah. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
19. ENTIRE AGREEMENT.
This Agreement constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous contracts and understandings, both written and oral, between the Parties.
20. AFFIRMATION OF THE PARTIES.
The Parties affirm that they have entered into this Agreement freely, voluntarily, and without reliance on any promises, representations, or other statements not contained in this Agreement and have read and understood this Agreement.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.