Last Updated: February 20, 2024
These Terms and Conditions of Sale (including any policies or attachments referenced herein, this “Agreement”) apply to all offers and sales by Courier Plus Inc d/b/a Dutchie (“Company”) of goods and services purchased by you (“Goods” and “Services”, respectively). By placing your order for the Goods or Services, you accept and are bound to the terms and conditions of this Agreement.
1. Other Documents. All descriptions, quotations, proposals, offers, acknowledgments, acceptances and sales of Goods and Services by Company are subject to and will be governed exclusively by this Agreement. Any terms or conditions in addition to, or inconsistent with, those stated herein are hereby objected to. Notwithstanding the foregoing, if a written contract signed by both parties is in existence covering the sale of Goods or performance of Services covered herein, the terms and conditions of such contract will prevail to the extent any such term or condition is in conflict or inconsistent with the applicable term or condition hereunder. Company’s acceptance of any offer to purchase by you is expressly conditioned upon your assent to all of the terms and conditions stated in this Agreement. Acceptance of the Goods or Services will in all events constitute such assent. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and Company.
2. Quotes; Payment Terms; Orders; Interest. Unless set forth otherwise on the applicable quotation, quotations are valid for a period thirty (30) days following issuance. Terms of payment are within Company’s sole discretion and will be set forth on the applicable Company-issued quotation. Invoices are due and payable within the time period noted on your invoice (or ten (10) days if no such time period is noted), measured from the date of the invoice. Company may invoice parts of an order separately. Company is not responsible for pricing, typographical or other errors in any offer by Company and reserves the right to cancel any orders arising from such errors. Company reserves the right to charge you a late penalty charge of 1.5% per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Every thirty (30) days thereafter you will continue to be charged an additional late penalty charge. Title to the Goods passes from Company to you only upon payment in full for such Goods.
3. Delivery and Shipping. Company will deliver the Goods and perform the Services within a reasonable time after Company’s acceptance of your purchase order. The estimated dates set forth in any sales confirmation are merely estimates. Company will not be liable for any delay or loss or damage in transit. Company may, in its sole discretion, without liability or penalty, make partial shipments of Goods to you or partial performance of Services for you. Each partial shipment or performance will constitute a separate sale, and you will pay for the units shipped or services performed whether such shipment is in whole or partial fulfillment of your purchase order.
4. Shipping Charges; Taxes; Title; Risk of Loss. Shipping and handling are additional unless otherwise expressly indicated in the applicable quotation. Unless you provide Company with a valid and correct tax exemption certificate applicable to your purchase of Goods or Services and the Goods ship-to and Services performance location, you are responsible for sales and other taxes associated with the order.
5. Warranties; Disclaimer.
(a) The Goods, when delivered to a common carrier for shipment to you, will be free of material defects in workmanship and material prior to a period of twenty-four (24) months from the date of shipment of the Goods. The Services will be performed in a professional and workmanlike manner. These warranties are otherwise subject to Company’s standard warranty policy. Without limitation, this limited warranty does not apply to (i) any third party products or components; consumables; (ii) defects resulting from Goods that have been damaged or misused by any person or entity, or otherwise used other than in accordance with the Goods’ user manuals, specifications and/or related documentation, after risk of loss passes to you; or (iii) defects resulting to the Goods or Services from instructions provided by you. You will be liable for costs or expenses incurred by Company related to the foregoing exclusions. Notwithstanding the foregoing, the above warranty shall be voided if any software is installed on the Goods without Company’s express written consent.
(b) If any Goods supplied or Services performed by Company to you fails to conform to the quality warranties set forth in Section 5(a) above (“Non-Conforming Goods or Services”), then Company will at its election and its cost arrange for the prompt repair or replacement and shipment or re-performance of such Non-Conforming Goods or Services. Correction in the manner provided above will constitute your sole remedy for, and complete fulfillment by Company of, all liabilities of Company with respect to the quality of the Goods and Services. Company will not accept return of Goods except in accordance with this Section 5(b) and such reasonable instructions for returning Goods as Company may provide from time to time. The foregoing will only apply if the claim is made by you in writing within twenty-one (21) days of its detection of a defect, and only if the defect was not caused by you or any of your employees, customers or contractors or other third parties.
(c) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5(A) ABOVE: (A) THE GOODS AND SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OR SUPPORT OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND NO OTHER REPRESENTATIONS OR CLAIMS OF ANY KIND WILL BE BINDING ON OR OBLIGATE US; (B) THE GOODS AND SERVICES ARE EXPRESSLY PROVIDED TO YOU “AS IS”; (C) IF ANY TECHNICAL SUPPORT OR ASSISTANCE IS PROVIDED WITH RESPECT TO THE GOODS AND SERVICES AND THE USE THEREOF, IT IS PROVIDED “AS IS”, WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED; (D) COMPANY DOES NOT WARRANT THAT THE USE OR OPERATION OF THE GOODS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; AND (E) YOU BEAR ALL RISKS RELATING TO THE USE OF THE GOODS AND SERVICES AND THE QUALITY AND PERFORMANCE OF THE GOODS AND SERVICES AND ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION EXCEPT. THESE TERMS STATE YOUR SOLE AND EXCLUSIVE REMEDIES.
6. Indemnification. You will defend, indemnify and hold harmless Company and its officers, directors, employees, permitted successors, agents and representatives from and against any liability, claim, demand, action, suit, proceeding, loss, damage or expense (including court costs and reasonable attorneys’ fees) related to or arising from (i) misuse of the Goods, (ii) installation of any software on the Goods without Company’s express written consent, or (iii) your negligence or wrongful act, error or omission resulting in injury and/ or death of any person or damage to or loss of any property.
7. Limitation of Liability. TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT COMPANY WAS AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE: (A) COMPANY’S AGGREGATE LIABILITY (WHETHER BASED ON WARRANTY, CONTRACT, TORT, INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL THEORY) WILL IN NO CIRCUMSTANCES EXCEED THE COST OF THE GOODS AND SERVICES YOU ORDERED THAT IS RELATED TO YOUR DAMAGES; AND (B) IN NO EVENT WILL COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, OR COST OF COVER, OR DAMAGES RESULTING FROM LOST DATA (WHETHER BASED ON WARRANTY, CONTRACT, TORT, INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL THEORY). SOME STATES, COUNTRIES AND PROVINCES DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. Firmware. Subject to the terms and conditions of this Agreement, to the extent any Company software is embedded in the Goods as delivered by Company to you hereunder, Company hereby grants to you a limited non-exclusive, non-sublicensable, non-transferable license to use such software in object code format solely as required to operate the Goods in accordance with their applicable specifications. You will not, directly or indirectly, translate, disassemble or decompile such software, nor create or attempt to create, by reverse engineering or otherwise, the source code of such software. Subject only to the rights expressly granted to you under this Section 8, Company and its licensors retain all proprietary rights and title (including without limitation all intellectual property rights) to such software and any modifications thereof. No ownership of any part of such software is hereby transferred to you.
9. Confidentiality. If the parties have entered into a written non-disclosure agreement, the terms of such agreement will govern the exchange of information under this Agreement. If the parties have not entered into a written non-disclosure agreement, then you agree for a period of five (5) years following the disclosure of any Confidential Information by Company to you, you will hold in strictest confidence, and will not use or disclose to any third party, any Confidential Information of Company. The term “Confidential Information” means all non-public information that Company designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential and includes, without limitation, the terms and conditions of this Agreement, Company quotations, information relating to released or unreleased Company products, goods or services and information received from others that Company is obligated to treat as confidential. "Confidential information" will not include information that was known to you prior to Company’s disclosure to you, or information that becomes publicly available through no fault of yours. You may from time to time provide suggestions, comments or other feedback (“Feedback”) with respect to the Goods and Services and other products, goods or services of Company. You agrees that all Feedback is and will be given entirely voluntarily. Feedback, even if designated as confidential by you, will not, absent a separate written agreement, create any confidentiality obligation for or upon Company. Company will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property or otherwise.
10. Compliance with Law; Export Control. You will comply with all applicable laws, regulations and ordinances and maintain in effect all the licenses, permissions, authorizations, consents and permits that you need to carry out your obligations under this Agreement. You will comply with all export and import laws of all countries involved in the sale of the Goods and Services under this Agreement. You assume all responsibility for shipments of Goods or performance of any Services requiring any government import clearance. Company may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Goods or Services.
11. Governing Law. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the state of Oregon without regard to its rules of conflict of laws. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the state of Oregon and of the United States of America located in Oregon (the “Oregon Courts”) for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Oregon Courts and agrees not to plead or claim in any Oregon Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Oregon Courts.
12. Miscellaneous. Company will have no liability under this Agreement for Company’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond Company’s control. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the parties as of the effective date of this Agreement. Nothing in this Agreement will be construed to place the parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise. You may not assign or transfer this Agreement in whole or in part, without the prior written consent of Company. Any attempted assignment, delegation or transfer by you in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns. All notices under this Agreement will be in writing and will reference this Agreement. Notices will be deemed given: (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (c) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the first page of this Agreement or such other addresses designated pursuant to this Section 12. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both parties
