Terms of Purchasing our Products or Services
The terms and conditions set forth in these terms of purchase (this "Agreement") and in the "Terms of Access" constitute the entire agreement between French Creek Marina, USA Inc. herein referred to as "French Creek Marina" and you, herein referred to as the "Buyer" concerning products or services purchased through the Website. Capitalized terms used herein shall have the meaning as defined herein, or if not defined, as defined in the Terms of Access.
1. Offer and Acceptance
By ordering a product on the Website, Buyer shall be deemed to have made an offer to buy the specified product from French Creek Marina pursuant to this Agreement. The acceptance and fulfillment by French Creek Marina of any order placed on the Website is subject to Buyer's acceptance of all of the terms of this Agreement. All other contrary terms and conditions are expressly rejected, and no addition or modification to this Agreement shall be binding unless agreed to in writing by French Creek Marina. Buyer accepts these terms and conditions by placing an order through the Website, or by receiving delivery of any products or services ordered by Buyer from the Website. French Creek Marina shall not be deemed to have accepted Buyer's offer unless and until French Creek Marina sends to Buyer, through electronic means, facsimile or other written communication, an acknowledgment that Buyer's order has been confirmed and will be fulfilled by French Creek Marina. French Creek Marina' acceptance of any offer by Buyer is only made with the express understanding that this Agreement shall govern any sale of products or services through the Website to Buyer.
2. Prices, Availability and Taxes
Prices of products or services on the Website are subject to change at any time without notice. All products or services may not be available in all areas. Product availability is subject to change at any time and French Creek Marina makes no representations or warranties regarding product availability. Buyer shall be responsible for any tax or other governmental charge due to the sale, use or delivery of the product, including, but not limited to, GST/HST Tax. All applicable taxes and other charges will be added to the purchase price.
When ordering products or services on the Website, Buyer may use [Paypal]. If Buyer fails to pay for any products or services received, French Creek Marina shall have the right, in addition to other remedies, to suspend or cancel further deliveries, and to proceed in any court of proper jurisdiction against Buyer for all amounts due to French Creek Marina, including, but not limited to, attorney fees, costs and interest.
4. Shipping, Title and Risk of Loss
French Creek Marina will ship products or services using the shipping method selected by Buyer on the Website. All sales are made F.O.B., the shipping point. French Creek Marina shall use reasonable efforts to cause products or services to be delivered to Buyer by requested delivery dates, but shall in no event be liable for any losses or damages caused by delay or non-delivery of products or services. Buyer shall be responsible for all shipping charges. Title and risk of loss in the products or services shall pass to Buyer upon French Creek Marina' (or its agent's) delivery to the carrier at the shipping point.
5. Disclaimer of Warranties
SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING NONINFRINGEMENT, THE PRODUCTS OR SERVICES, OR THE MERCHANTABILITY OR FITNESS OF THE PRODUCTS OR SERVICES FOR ANY PARTICULAR PURPOSE, AND EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES. Buyer is solely responsible for determining the suitability of the products or services for the uses and applications contemplated by Buyer. Buyer assumes all risks and liabilities arising out of possession, use, or resale of the products or services, whether used singly or in combination with other material, including, but not limited to, any risk or liability based on alleged negligence on the part of French Creek Marina.
6. Buyer's Representations
Buyer represents that it has the requisite power and authority to enter into this Agreement and to perform the obligations under this Agreement. Buyer represents that it has provided accurate information to French Creek Marina in purchasing products or services through the Website and that its offer to purchase products or services complies with all applicable laws. Buyer acknowledges and agrees that it is solely responsible compliance with all applicable laws and regulations concerning Buyer's purchase, possession, use, or resale of the products or services. Buyer further represents that it is familiar with the characteristics of the products or services, and will comply with all laws, regulations, and standards applicable to the possession, handling, processing or use of the products or services by Buyer, including, but not limited to, the Occupational Safety & Health Act of 1970.
Buyer shall defend, indemnify and hold French Creek Marina and its suppliers, including, but not limited to, their affiliates, agents, assigns, attorneys, employees, insurers, officers, predecessors, representatives, and successors, harmless from and against all claims, liabilities, costs and expenses (including, but not limited to, those related to injury or to death of Buyer's employees or other persons) arising from or connected with (a) a breach by Buyer of this Agreement or (b) the possession, handling, use, or resale of the products or services by Buyer or others, including, but not limited to, any claims alleging negligence on the part of French Creek Marina. French Creek Marina may participate in the defense of any such claim for the further protection of its own interests.
8. Limitation of Claims
Without limiting the scope of any other terms and conditions herein, any and all claims related to products or services sold to Buyer through the Website shall be made within thirty (30) days after receipt of the product to which the claim relates, or if for non-delivery, after the scheduled delivery date thereof. Buyer's failure to give French Creek Marina written notice of any claim within the applicable time period shall constitute an absolute and unconditional waiver of such claim. In no event shall Buyer commence any action against French Creek Marina related to products or services sold to Buyer through the Website later than one year after receipt of the product giving rise to such action.
9. Limitation of Liability
Without limiting the scope of any other terms and conditions herein, including French Creek Marina' disclaimer of warranties, no claim of any kind, whether as to products or services delivered or for non-delivery of products or services, or otherwise, and whether based on contract, breach of warranty, negligence, strict liability, indemnity, contribution, or otherwise, shall be greater in amount than the purchase price of the products or services in respect of which damages are claimed. IN NO EVENT SHALL French Creek Marina BE LIABLE FOR LOSS OF BUSINESS, LOSS OF PROFITS OR GOOD WILL, OR ANY OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BUYER'S CLAIM IS BASED ON CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, CONTRIBUTION, OR OTHERWISE, AND NOTWITHSTANDING ANY CLAIM THAT SUCH LOSSES WERE REASONABLY FORESEEABLE TO French Creek Marina OR ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
10. Force Majeure
Without limiting the scope of any other terms and conditions herein, French Creek Marina shall not be responsible or liable for any delay or failure to deliver any or all of the products or services for causes beyond its reasonable control, including, but not limited to, any cause or circumstance which makes impracticable the production, transportation or delivery of the products or services. French Creek Marina may cancel an order to the extent the quantity not delivered is due to any such cause or circumstance. In no event shall French Creek Marina be obligated to purchase products or services to replace any quantity not delivered due to any such cause or circumstance. In the event of any cause or circumstance excusing French Creek Marina, French Creek Marina shall have the right to allocate any remaining product supply among its customers, including those not under contract, in a fair and reasonable manner, and Buyer hereby releases French Creek Marina from responsibility or liability for any resulting incomplete fulfillment of Buyer's order.
a) No waiver by either party of any breach of any terms or conditions contained herein shall be cons1d as a waiver of any succeeding breach of the same or any other terms or condition herein. Nothing contained herein shall limit the remedies of French Creek Marina in the event of Buyer's breach of this Agreement.
b) All notices related to this Agreement shall be in writing. The parties expressly agree that electronic communications shall be considered "writings" for all purposes under applicable law. If notice is not sent by electronic communications, notices shall be deemed given when delivered to or deposited in the United States mail, first class, postage prepaid, and, if to Buyer, sent to the address identified by Buyer when registering to purchase products or services through the Website and, if to French Creek Marina, to French Creek Marina USA, INC. 601 West 26th Street, Clayton, New York, USA 10001.
c) If any terms and conditions herein are held to be invalid or unenforceable, such holding shall not affect the validity or enforceability of any other term or condition herein.
d) These Terms and Conditions shall be governed by and cons1d under the laws of the State of New York, United States of America, without regard to conflict of laws principles. Any legal action with respect to any transaction subject to this Agreement must be commenced within one year after the cause of action has arisen. Any actions arising out of products or services purchased through the Website shall be commenced in the state or federal courts of New York. Buyer agrees to submit to the jurisdiction of these courts and waives any claim that venue is improper for any reason in these courts.
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