Terms and Conditions of Use, Sale, and Services
Last Revised: March 14, 2024
PLEASE READ THESE TERMS OF USE, SALE, AND SERVICES CAREFULLY. BY ACCESSING OR USING OUR WEBSITE AND/OR ORDERING PRODUCTS OR SERVICES FROM US, YOU AGREE TO BE BOUND BY THESE TERMS OF USE, SALE, AND SERVICES AND ALL TERMS INCORPORATED BY REFERENCE. DO NOT USE OUR WEBSITE, ONLINE SERVICES, OR ORDER OUR PRODUCTS IF YOU DO NOT AGREE TO ALL OF THESE TERMS.
1. General. These Terms and Conditions of Use, Sale, and Services (“Terms and Conditions”) constitute an offer by Blacoh Fluid Controls, Inc. (“Blacoh” or “Seller”) that shall apply to the sale of goods we sell, as identified on our Website, Blacoh.com (“Site”), in our catalog, or in any Blacoh quotation, order acknowledgment, or invoice (the “Products”) to you (“Buyer” or “You”), subject to the terms, covenants, and conditions contained herein. Seller agrees to provide the Products to Buyer only on these Terms and Conditions, notwithstanding any language in Buyer’s purchase order, if one exists, or other writing or oral representation previously, simultaneously, or hereafter received by Seller which purports to amend, add to, modify, or replace these Terms and Conditions with any different or additional terms, covenants, or conditions, each and all of such additional or different terms, covenants, and conditions are hereby objected to and rejected and shall be null and void and of no effect. In the event of a conflict or inconsistency between any of the terms of these Terms and Conditions and an Invoice, the Terms in these Terms and Conditions shall control. SELLER’S AGREEMENT TO PROVIDE THE PRODUCTS IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN THESE TERMS AND CONDITIONS.
2. Use of the Site. By accessing or using our Site and/or by ordering our Products or Services, you agree to these Terms and Conditions. If you do not agree to these Terms and Conditions, you may not access or use the Site. Blacoh reserves the right to change or modify these Terms and Conditions at any time and in our sole discretion, and such changes will be effective immediately upon being posted on the Site. Each time you use the Site or order Products, you should review the then-current Terms and Conditions to ensure you understand the terms and conditions that apply to your use of the Site and order of Products. Your continued use of the Site or order of Products will confirm your acceptance of the Terms and Conditions in effect as of the date of your last use of the Site or as of the date of your order. If you do not agree to Terms and Conditions, including amendments to the Terms and Conditions, you must stop using the Site and refrain from placing an order. In addition, if you use any of our e-commerce applications, you are also subject to the end user license agreement associated with the e-commerce application, but if and to the extent that there is any conflict between the Terms and Conditions and the end user license agreement for an e-commerce application, these Terms and Conditions shall prevail.
3. Buyer’s Acceptance. With respect to any order, Buyer shall be deemed to have made an unqualified acceptance of these Terms and Conditions and it shall become the agreement between the parties on the earliest of the following to occur: (i) Seller’s receipt of Buyer’s order number; (ii) Buyer’s payment of any amounts due to Seller; (iii) Buyer’s delivery to Seller of any material to be furnished by Buyer; (iv) Buyer’s receipt of the Products; or (v) any other event constituting acceptance under applicable law. Our acceptance of any order submitted by you is expressly subject to your acceptance of the Terms and Conditions.
4. Product Orders. While Blacoh uses its best efforts to fulfill all orders, Blacoh cannot guarantee the availability of any particular Product displayed on its Site. Blacoh reserves the right to discontinue the sale of any Product listed on the Site at any time without notice. We reserve the right to limit quantities to the amount reasonable for our customers. We do not guarantee that any content on the Site is accurate or complete, including price information and product specifications. If Blacoh discovers price errors, they will be corrected on our systems, and the corrected price will apply. Blacoh reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions (including after an order has been submitted and accepted).
5. Offerings on the Site. We may change or terminate any of the Products, services, programs, promotions, and/or other offers, deals, or specials (collectively, “Offerings”) described or offered through the Site at any time without notice to you. Not all Products are available at all times. Some or all of the Offerings or Products may not be available in your location. References to any Offerings or Products on the Site that may be available in one location do not warrant or imply that Seller offers or intends to offer them in any other location. In addition, from time to time we may work with a third party to provide an Offering; please note that some or all of the pertinent information about such Offering may also be found at such third party’s website, and we encourage you to review all such information before participating in any such Offerings.
6. Privacy Policy. Blacoh respects consumer privacy and is committed to protecting it. Blacoh collects data about users of our Site. Please refer to our Privacy Policy, available at https://www.blacoh.com/privacy.aspx, for information on how Blacoh collects, uses, shares, and safeguards information about users of the Site and the business purposes for the collection of such information. Please read our Privacy Policy carefully to understand our policies and practices regarding your information. If you do not agree with our Privacy Policy, your choice is not to use our Site. By accessing or using our Site or ordering any Products, you agree to our Privacy Policy. You should also refer to any separate notices we provide that apply to any Offerings or other specifics services we provide, as such notices may include information on additional policy practices or other terms.
7. Electronic Communications Opt-In. When you visit the Site or send an email to us, you are communicating with us electronically. You consent to receive communications from us electronically and agree that we may communicate with you by email or by posting notices on the Site. If you contact us by email, telephone, facsimile or similar electronic communication service, you consent to our use of the same communication method, and/or any email address or telephone number you provide in contacting us, to respond to your contact. Message and data rates may apply.
8. Ownership, License, and Restrictions on Use. Blacoh provides all information on the Site exclusively under these Terms and Conditions and all applicable laws. Unless otherwise indicated, all right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the Site belongs to Blacoh, its licensors, or suppliers. In addition, the names, images, pictures, logos, and icons identifying Blacoh’s products and services are proprietary or licensed marks of Blacoh, its licensors, or suppliers. Except as expressly provided below, nothing contained herein shall be construed as conferring any license or right, by implication, estoppel, or otherwise, under copyright, trademark or other intellectual property rights. You are hereby granted a personal non-exclusive, non-transferable, limited license to view the Site, and to download and/or print insignificant portions of materials retrieved from the Site provided (a) it is used only for informational, non-commercial purposes; and (b) you do not remove or obscure the copyright notice or other notices. Except as expressly provided above, no part of the Site, including but not limited to materials retrieved therefrom or the underlying code, may be reproduced, republished, reverse-engineered, copied, uploaded, downloaded, displayed, modified, licensed, transmitted, or distributed in any form or by any means or for any commercial purpose, without express written permission of Blacoh. Nothing herein transfers any right or license to the underlying code of any of the Site.
9. User Content. Blacoh may, now or in the future, allow users to post, upload, transmit through, or otherwise make available on the Site (collectively, “submit”) messages, receipts, text, illustrations, personal stories, reviews, illustrations, files, graphics, photos, comments, sounds, music, videos, information, content, or other materials (“User Content”). By submitting User Content, you automatically grant Blacoh a world-wide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable and transferable, right and license to use, record, sell, lease, reproduce, distribute, create derivative works from, publicly display or perform, transmit, publish, and otherwise exploit the User Content, in whole or part as Blacoh deems appropriate including, but not limited to, in connection with Blacoh’s or its or affiliates’ businesses. Blacoh is not responsible for User Content for any links or images embedded in the User Content, or for the results obtained by using the User Content. Blacoh does not endorse or warrant, and is not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement contained in User Content. Under no circumstances will Blacoh be liable for any loss or damage caused by reliance on the Site, User Content or information or materials obtained through User Content. You shall not submit any User Content that is protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, or property right of a third party without the owner’s express permission. You are solely liable for any damages resulting from your failure to obtain consent. You shall not submit content that (a) violates or infringes the rights of others; (b) is unlawful, defamatory, threatening, harassing, abusive, libelous, invasive of privacy or publicity rights, vulgar, obscene, pornographic, profane, lewd, lascivious, excessively violent, or otherwise objectionable; (c) encourages criminal conduct or conduct that gives use to civil liability or otherwise violates any law; (d) advertises goods or services; (e) solicits funds; or (f) contains instructions, formulas, or advice that could harm or injure. Blacoh has no control over and shall have no liability for any damages resulting from the use or misuse by any third-party of information that you make public by submitting it. If you choose to make personally identifiable information available, you do so at your own risk. Blacoh has the right, but not the obligation, to monitor User Content. We reserve the right not to post or take down any User Content. We do not have an obligation to post, maintain, screen, or otherwise use User Content. We may discontinue the ability to submit User Content in the sole discretion of Blacoh.
10. Links to Third-Party Sites. Blacoh provides links to third-party websites for your convenience. Blacoh does not assume any responsibility for the (i) content of, (ii) technology implemented by, or (iii) privacy practices of third-party websites and all use is at your own risk. You should review the privacy policy and terms of use for each third-party website and confirm they are acceptable prior to registration on or use of the site. Links to third party sites do not imply endorsement of the sites by Blacoh. In no event shall Blacoh be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the use of the linked third-party websites or the information or material accessed through such third-party websites including, without limitation, any incidental, special, or consequential damages of any kind whatsoever, attorneys’ fees and lost profits.
11. Cancellation or Modification. Buyer may not cancel or modify its order except upon terms accepted in writing by Seller. In the event of such cancellation or modification, Buyer shall compensate Seller for any and all resultant costs and damages. All orders for undelivered Products may be cancelled by Seller, without incurring any liability to Buyer, if (a) production becomes impracticable; or (b) as permitted in Section 32, below. Seller also reserves the right to correct typographic errors and reject or cancel orders because the Product is out of stock, applicable law prevents the sale of the Products in Buyer’s area, or for any other reason. Seller may cancel any order without liability to Buyer, and Buyer shall be required to compensate Seller for any and all resultant costs and damages, if any of the following apply and Seller cancels an order due in whole or in part to Buyer’s (1) breach of these Terms and Conditions, (2) Buyer’s purported modification or rejection of any terms, limitations, exclusions, or exceptions on the Site or in the Terms and Conditions; (3) delay in performance that Seller determines, in its sole and absolute discretion, to be inexcusable delay, or (4) failure to timely make any payments required hereunder or in accordance with the quotation or invoice, in addition to any of Seller’s other remedies.
12. Delivery. Seller will use its reasonable business efforts to meet the scheduled dates, but does not guarantee to meet such dates. Time for delivery shall not be of the essence. Failure by Seller to make any shipments by scheduled dates does not constitute a cause for cancellation and/or for damages of any character.
13. Risk of Loss; Title. Seller shall deliver the Products to the Delivery Point. Unless otherwise stated in Seller’s Invoice, the “Delivery Point” shall be F.O.B. Seller’s manufacturing facility or Seller’s warehouse facility for pre-manufactured or thirdparty manufactured Products. Regardless of any freight payment by Seller on Buyer’s behalf (for which Buyer agrees to reimburse Seller), all risk of loss or damage in transit shall pass to Buyer upon delivery to the Delivery Point. Seller is not responsible for any loss, damage, or delay which may occur after Seller delivers the Products to the Delivery Point. Any claims for damage in transit shall be filed by Buyer directly with the carrier.
14. Limits on Use of and Reliance on Information Made Available to You. Except where otherwise indicated for certain Products manufactured entirely by Blacoh, we rely on our suppliers to provide warnings, instructions, chemical content, country of origin determinations, safety data sheets, and other information regarding the purchase, installation, use, handling, storage, resale, transportation and disposal of or relating to the Products. BLACOH MAKES NO REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED) CONCERNING AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WE HAVE NO LIABILITY FOR THE ACCURACY OR COMPLETENESS OF, OR LACK OF, ANY WARNINGS, INFORMATION OR INSTRUCTIONS PROVIDED BY OUR SUPPLIERS.
15. Inspection, Rejection, and Returns. Buyer shall inspect the Products upon receipt and any claims for shortages or other errors must be noted at the time of delivery on all carrier documents and supported by signed documentation. Buyer shall inspect the delivered Products and notify Seller of its acceptance or rejection of the Products in writing within ten (10) business days. Failure to timely give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. No Products may be returned to Seller for any reason without Seller’s prior written authorization. Buyer shall give Seller written notice of any rejection. If authorized for return to Seller for inspection, Buyer shall, at Buyer’s sole expense, deliver any rejected Products to Seller’s facility. Seller shall promptly inspect any rejected Products upon return receipt of the rejected Products. If Seller confirms the existence of any obvious defect or damage by inspection, in Seller’s sole and exclusive judgment, other than damage due solely to mishandling during shipping, Seller shall reimburse Buyer for reasonable return shipping costs for the rejected Products and shall, at Seller’s option and in its sole and exclusive discretion, repair, replace, or refund Buyer’s payments for the rejected Products. It shall be Buyer’s sole and exclusive responsibility to verify and take necessary precautions to assure that the Products are safe to ship, including depressurizing any pressured vessels and/or otherwise rendering the product safe for shipping and handling before shipping the Product to Blacoh. Buyer shall indemnify and defend Blacoh for any damage, loss, injury, or harm caused, in whole or in part, as a result of Buyer’s shipment of a pressurized or partially pressurized vessel, a Product in any unsafe condition, or any other failure to secure or render any Product safe for shipping and handling prior to shipment of the Product.
16. After-Sale Activity. Seller’s sale of Products to Buyer does not convey to Buyer any right or license to any present or future Intellectual Property rights nor any right to use Seller’s Intellectual Property (“Intellectual Property” means all legal rights in Products, materials, works, processes, or ideas, including but not limited to patents, copyrights, trademarks, service marks, trade dress, proprietary information, mask works, designs, databases, technical data, inventions, trade secrets, or know- how), which is incorporated or embodied in the Products other than as set forth in these Terms and Conditions. If Buyer engages a third party to manufacture, repair, install, or sell any Products which incorporate or embody Seller’s Intellectual Property or seeks for itself regulatory approval or certification of any Products from any government agency or authority, such act will constitute an infringement of Seller’s Intellectual Property, and injunctive relief shall be the specific remedy therefor, in addition to all other remedies available at law or equity.
17. Prices. All prices, discounts and transportation or shipping charges are in U.S. Dollars and are subject to change without notice. Published prices do not include taxes, duties, brokerage or shipping costs, and they may be changed without notice. All general or special taxes, duties, fees, freight and insurance costs and any other charges of any nature whatsoever, imposed on, in connection with or measured by any transaction between Seller and the Buyer shall be paid by the Buyer in addition to the prices quoted or invoiced.
18. Payment. Unless otherwise stated in an Invoice issued from Seller to Buyer, payment is due upon order and before Products are shipped. Blacoh will generally accept major credit cards, but credit card arrangements are subject to change and may be subject to a surcharge not to exceed the percentage transaction fee charge Blacoh is charge. Payment via ACH is also generally available. Open accounts may be available on terms approved by Blacoh in its sole and absolute discretion. Payment terms on open accounts are Net 30. Custom/ Special orders terms for open accounts are 50% of the total order amount due upon acceptance of such order and 50% due before shipment. Terms of payment on all orders are subject to the written approval of Seller’s credit department. If Buyer does not pay Seller any amount when such amount is due, or if Buyer defaults in the performance of these Terms and Conditions or any Invoice issued from Seller to Buyer, Seller may, without incurring liability and without prejudice to Seller’s other lawful remedies and at Seller’s sole option: (i) terminate Seller’s obligations under these Terms and Conditions and any Invoice issued from Seller to Buyer; (ii) declare immediately due and payable all of Buyer’s obligations to Seller; (iii) change credit terms with respect to any further work; (iv) suspend or discontinue any further work until Buyer pays all overdue amounts; and/or (v) repossess the Products. Buyer agrees to reimburse Seller for all costs incurred by Seller in collecting any sums owed by Buyer to Seller, including without limitation, attorneys’ fees and costs of proceedings. Buyer agrees to pay a late payment fee of 1.5% per month (18% per annum) on all amounts not paid in full when due. Seller reserves the right to require payment in advance or other secured form of payment from time to time.
19. Security Interest. As partial consideration for Seller’s sale of the Products to Buyer, Buyer hereby grants to Seller and Seller hereby retains a security interest in all Products sold to Buyer now or hereafter in the possession of or under the control of Buyer, title to which might at any time be determined to have passed to Buyer, including, without limitation, all Products and materials thereof, returns or repossessions and the proceeds of all of the foregoing, to secure all of Buyer’s obligations to Seller under these Terms and Conditions and any Invoice issued from Seller to Buyer and all other obligations of Buyer to Seller. Buyer agrees to execute such financing statements, continuation statements and other documents and to take such actions as may be required by Seller to evidence or perfect the security interest granted herein and the interest of Seller as the owner of the Products. If Buyer fails to perform any of its duties set forth in these Terms and Conditions or any Invoice issued from Seller to Buyer, Seller is authorized in Buyer’s name or otherwise to take such actions including, without limitation, signing Buyer’s name, and Buyer hereby appoints Seller as its attorney-in-fact for such purpose.
20. Limited Warranty. Subject to the limitations herein, Seller warrants to Buyer that Products that are manufactured by Seller will be free from material defects in workmanship and materials under normal use and service, for the period of twelve (12) months after delivery (the “Warranty Period”). Seller DOES NOT warrant Products that are not manufactured by Seller, but assigns to Buyer, to the extent possible, any warranty offered by the manufacturer of such Products, as set forth below. There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, altered Products, failure to follow Seller’s instructions or improper storage. SELLER’S SOLE AND EXCLUSIVE OBLIGATION (AND BUYER’S SOLE AND EXCLUSIVE REMEDY) UNDER THIS WARRANTY SHALL BE, UPON PROMPT WRITTEN NOTICE RECEIVED BY SELLER DURING THE WARRANTY PERIOD OF ANY BREACH, TO EITHER, AT SELLER’S OPTION, REPAIR, CORRECT OR REPLACE WITHOUT CHARGE, F.O.B. SELLER’S FACILITY, ANY DEFECTIVE PRODUCT EXPRESSLY WARRANTED HEREIN BY SELLER AGAINST DEFECTS AND FOUND BY SELLER IN ITS SOLE DISCRETION TO BE DEFECTIVE AND COVERED BY THIS WARRANTY, OR CREDIT BUYER FOR THE PURCHASE PRICE PAID FOR SUCH PRODUCT. SELLER SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, TORT, OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR SELLER’S ACTS OR OMISSIONS OR OTHERWISE. This warranty covers only replacement, correction or repair of defective Products at Seller’s main facility and does not include the cost of inspection, removal, delivery or field service travel and living. The remedy described in this Section is Buyer’s exclusive remedy and is in lieu of any other remedy otherwise available at law or in equity.
21. Limited Liability. Prior to using Products, Buyer or user shall determine the suitability of the Products for the intended use and Buyer shall assume all risk and liability whatsoever in connection therewith. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, INDIRECT, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LABOR COSTS, LOSS OF GOODWILL, LOSS OF DATA OR BUSINESS INTERRUPTION, LOSS OF USE, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. TECHNICAL INFORMATION, PRODUCT TESTING, AND ANY ASSISTANCE IN EQUIPMENT, INSTALLATION, OR TECHNICAL OR ENGINEERING INFORMATION CONCERNING PRODUCTS PROVIDED BY SELLER WILL BE ADVISORY ONLY, AT CUSTOMER’S SOLE COST AND ON AN “AS IS” BASIS. SELLER’S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THESE TERMS AND CONDITIONS AND ANY INVOICE ISSUED FROM SELLER TO BUYER SHALL BE LIMITED TO THE MONIES PAID BY BUYER TO SELLER FOR THE DEFECTIVE PRODUCT. SELLER’S AGGREGATE LIABILITY TO BUYER WITH RESPECT TO ALL OTHER MATTERS OTHER THAN A DEFECTIVE PRODUCT, INCLUDING WITHOUT LIMITATION ANY BREACH OF THESE TERMS AND CONDITIONS BY SELLER AND ANY INDEMNIFICATION OBLIGATION SELLER MAY OWE TO BUYER, SHALL BE LIMITED TO THE TOTAL MONIES PAID BY BUYER TO SELLER FOR PRODUCTS AND SERVICES WITHIN TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF SUCH LIABILITY OR OBLIGATION. BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
22. Third-Party Warranty Claims. The Limited Warranty in these Terms and Conditions shall only apply to Buyer and not to any third parties. If a purported claim for breach of warranty is made to Seller by a customer or customers of Buyer, Buyer agrees to work with Seller to resolve such claim or claims. Notwithstanding, in the event that Seller settles or reimburses a customer of Buyer for any purported warranty claim, Buyer and Seller shall negotiate in good faith to settle the responsibility between Buyer and Seller. If Buyer and Seller have not settled the negotiations within thirty (30) days of commencement, Seller may issue a debit to Buyer, at Seller’s discretion, for up to the full value of claim reimbursement paid to any customer of Buyer. Nothing in this Section shall limit Seller’s rights and remedies.
23. Disclaimer of Warranties. SELLER AND BUYER AGREE THAT THE LIMITED WARRANTY IN SECTION 20, ABOVE, IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS FURNISHED BY SELLER HEREUNDER. SELLER HEREBY DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES WITH RESPECT TO THE PRINTING OR REPRODUCTION OF UNIVERSAL PRODUCT CODE INFORMATION. SELLER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY OR DURING PRODUCT TESTING OR AS A RESULT OF PRODUCT MISUSE. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as a warranty.
24. Disclaimer of Warranties for Products Manufactured by Other Manufacturers and Other Manufacturers’ Warranties. SELLER MAKES NO WARRANTIES, AND DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO PRODUCTS THAT ARE NOT MANUFACTURED BY SELLER. For Products furnished by Seller, but produced or manufactured by others, the written warranty of the manufacturer, if any, will be assigned to Buyer if assignment is permitted and reasonably practicable. However, Seller does not adopt or guarantee or represent that the manufacturer will comply with any of the terms of the warranty of the manufacturer whether or not assigned. There is NO WARRANTY for any Products not manufactured by Seller other than the manufacturer’s warranty, if any, assigned hereunder.
25. Your Representations and Warranties to Blacoh. You are responsible for familiarizing yourself with all other available information about the Products prior to your purchase and use of them to determine their suitability for and any limitations on your intended use. In connection with any purchase of Products from us, you warrant, represent, acknowledge, and agree as follows: (i) the purchase, installation, use, handling, storage, resale, transportation, disposal, export or import of the Products by you and any third party to whom you may resell them is and will be incompliance with all applicable laws and regulations and will conform to generally recognized industry and professional standards; (ii) you and any third party to whom you may resell the Products are or will be knowledgeable concerning the laws and other practices relating to the safe and lawful purchase, installation, use, resale, handling, storage, transportation, and disposal of the Products; (iii) you have used your own skill and judgment in selecting and you are solely responsible for the determination and selection of suitable Products for your contemplated use and the use contemplated by any third party to whom you resell the products; (iv) you are at least 18 years of age, and have the legal right and are authorized to purchase the Products; (v) you understand any and all hazards associated with the storage, use, handling and transportation of the Products; (vi) you are solely responsible for protecting and/or warning all parties who may be exposed to those hazards as a result of your use or resale of the Products; and (vii) if you are located in California, when you use our printed catalog to purchase Products, the Products are being purchased only for professional or commercial use, and not for personal or household use.
26. Intellectual Property Ownership. Blacoh is and shall be the sole and exclusive owner of all Intellectual Property rights, title, and interests throughout the world in and to the Site and all of the technical work, work product, and materials (including, without limitation, the Products and any other deliverables identified in the Invoice, ideas, knowhow, information, data, and all Intellectual Property rights therein), that are produced by or for Seller. Notwithstanding anything else herein, except as otherwise provided in these Terms and Conditions, all of Seller’s Intellectual Property used, incorporated into, or created in connection with Buyer’s order are and at all times shall remain Seller’s exclusive property and Buyer shall not use, copy, reproduce, distribute, publish or communicate to any third party such Intellectual Property without Seller’s prior written consent.
27. Blacoh Trademarks, Service Marks, and Trade Dress. Blacoh and other related marks, design marks, product names, feature names, and related logos used on the Site are trademarks of Blacoh and may not be used, copied or imitated, in whole or in part, without the express prior written permission of Blacoh. In addition, the look and feel of the Site constitutes the trade dress and/or service mark/trademark of Blacoh and may not be copied imitated or used, in whole or in part, without the express prior written permission of Blacoh. Blacoh’ trademarks, service marks, and trade dress are the Intellectual Property of Blacoh and may not be used in connection with any product or service in any manner that is likely to cause confusion among consumers, or in any manner that disparages Blacoh or suggests a sponsorship, affiliation, or endorsement by Blacoh. All non-Blacoh trademarks, service marks, logos, trade dress, domain names, and trade names are the properties of their respective owners.
28. DMCA Procedures for Making Claims of Copyright Infringement. If you believe your work has been copied on the Site in a way that constitutes copyright infringement, please send our Copyright Agent a written notification (“the Infringement Notification”) containing all the following information: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single Infringement Notice, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; Information reasonably sufficient to permit us to contact you, such as an address, telephone number and, if available, an email address; (iv) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (v) A statement that the information in the Infringement Notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
29. Installation Services. Whether or not an Invoice for the sale of Products between Buyer and Seller is coupled with a contract for the installation of those Products, where such services are provided by Seller the following additional conditions shall apply: (i) Seller shall be under no obligation to commence installation of any Products until such Products have been paid for in full and until a proper, safe site has been provided by Buyer; (ii) Buyer shall ensure that (a) the installation site is prepared and made safe and ready for the installation, (b) Seller has full free access to the installation site at all times, and (c) Buyer’s personnel provide all reasonable assistance requested by Seller or its employee or agents during the installation; and (iii) Buyer shall provide all facilities for Seller as Seller, in its sole discretion, shall deem necessary to enable the installation to be carried out safely, expeditiously, and conveniently. Seller reserves the right not to do work if, in its sole discretion, job conditions render such action inadvisable for any reason or unsafe for any reason. Further, Buyer agrees that any personnel or equipment used by Seller in performing any installation services shall come without warranty or guarantee of any kind whatsoever except as provided herein. Seller’s personnel will attempt to perform the work requested by Buyer; however, because of the nature of the work to be accomplished and because of the unpredictable conditions which always exist, such results as required by Buyer cannot be and are not guaranteed or warranted and Buyer agrees that Seller makes no warranties of any kind and that Seller does not guarantee any particular result as from furnishing Products, personnel, goods, personal property, equipment, or services. Buyer shall pay Seller for Products regardless of whether the desired results are achieved without any deduction or offset of any kind, irrespective of any claims which Buyer may assert or allege against Seller. Buyer shall indemnify Seller against all loss or damage suffered or liability incurred by Seller in connection with or arising out of such installation. For the avoidance of doubt, Buyer’s indemnification obligations set forth in the Indemnification section of these Terms and Conditions, below, shall apply equally to any installation services provided by Seller.
30. Compliance with Laws and Regulation. Buyer represents and warrants that it will comply in all respects with all laws, rules, regulations, ordinances, proclamations, demands, directives, or other legal requirements that now govern or may hereafter govern the Products or their constituent parts. Buyer agrees to adhere to applicable export control laws and regulations and will not export, re‐export, resell, or transfer the Products except in accordance with such laws and regulations. Buyer specifically acknowledges that it is familiar with U.S. laws and regulations concerning the export or re-export of U.S. information and technology, or the direct product thereof, to unauthorized destinations and persons and Buyer agrees to abide by all such laws and regulations in respect of all information or technology supplied by Seller under these Terms and Conditions. Buyer further agrees not to export, directly or indirectly, Seller’s technology, direct product or information to any restricted or prohibited destination under applicable U.S. laws and regulations and until such request is approved in writing by the appropriate U.S. Government Agency. Buyer will retain documentation evidencing compliance with any laws and regulations and Buyer agrees upon request to furnish Seller with a certificate of compliance relating to any applicable laws and regulations in such form as Seller may require. Buyer agrees to indemnify and hold Seller harmless from any fines, penalties, or other liability arising from any failure of Buyer to comply with such laws and regulations on the same terms as set forth in the Indemnification section. For the avoidance of doubt, Buyer’s indemnification obligations set forth in the Indemnification section of these Terms and Conditions, below, shall apply equally to any installation services provided by Seller.
31. Indemnification. Buyer hereby releases and agrees to indemnify, defend and hold harmless Seller, its shareholders, directors, officers, partners, members, contractors, employees, affiliates, agents, successors and assigns (collectively, “Seller’s Indemnified Parties”) from and against any and all direct and indirect claims, demands, actions, liabilities, judgments, damages, losses, fines, penalties, forfeitures, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs of proceedings (collectively, “Damages”), arising out of, in connection with, resulting from or relating to: (i) breach of these Terms and Conditions, any Invoice issued from Seller to Buyer, or any law by Buyer or any of Buyer’s shareholders, directors, officers, partners, members, contractors, employees, representatives, agents, successors or assigns (“Buyer’s Parties”); (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer’s Parties; (iii) losses, damages or injuries caused by, arising out of or relating to the Products or the handling or use of the Products; (iv) any infringements of any Intellectual Property rights of any other party by the Products either alone or in combination with other products; (v) any matter for which these Terms and Conditions state Buyer shall indemnify Seller; and/or (vi) if Buyer or any subcontractor of Buyer shall perform work on Seller’s premises, any property damage, personal injury, or death (including without limitation injury to or death of employees of Buyer or any subcontractor of Buyer) and expenses, costs of litigation, and attorneys’ fees related thereto or incident to establishing the right to indemnification, arising out of or in any related to the Products. Seller shall provide Buyer with written notice of any claim or proceeding subject to indemnity hereunder. In any defense of Seller by Buyer pursuant to Buyer’s duty to indemnify Seller pursuant to these Terms and Conditions, Seller shall be entitled to control the defense and to select counsel of its choice. Notwithstanding, Seller shall provide reasonable cooperation and assistance to Buyer in the defense and settlement of such claim at the expense of Buyer. In no event shall Buyer’s obligations hereunder be limited to the extent of any insurance available to or provided by Buyer or any subcontractor of Buyer. Buyer expressly waives any immunity under industrial insurance, whether arising out of statute or source.
32. Force Majeure. Seller will endeavor to fill all accepted orders and provide all Products and services included in the Invoice or encompassed in the Products as soon as it is practical and consistent with production schedules. Seller shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, public health pandemic or epidemic, terrorism, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Seller’s available supply, or any other cause beyond Seller’s control affecting production or delivery. In the event of any delay in shipment or nonperformance caused by any of the foregoing, Seller may, at its option and without liability, cancel all or any portion of its obligations to Buyer and/or extend any date upon which performance is due. For the avoidance of doubt, none of the foregoing, nor anything in this section, shall excuse Buyer’s payment or monetary obligations to Seller except in the event that Seller cancels all or any portion of its obligations to Buyer pursuant to this section.
33. Final Written Expression. These Terms and Conditions and any Invoice issued from Seller to Buyer (if any), constitute the final written expression of the terms between Seller and Buyer regarding the Products and, together, are a complete and exclusive statement of those terms. Any negotiations or understandings between Seller and Buyer, which are not contained in these Terms and Conditions or any Invoice issued from Seller to Buyer, shall have no force or effect. In the event of a conflict among the provisions of these Terms and Conditions and any Invoice issued from Seller to Buyer, the order of priority shall be: (i) these Terms and Conditions; (ii) the quotation; (iii) the acknowledgment; (iv) the Invoice.
34. Governing Law, Jurisdiction, and Venue. These Terms and Conditions and any Invoice issued from Seller to Buyer shall be governed and construed according to the laws of the State of California, including, without limitation, the Uniform Commercial Code as adopted in California, without regard to conflict of laws principles. Subject to Section 38, below, any cause of action, claim, suit or demand by Buyer allegedly arising from or related to these Terms and Conditions, any Invoice issued from Seller to Buyer, or the relationship of the parties shall be brought exclusively in the the United States District Court for the Central District of California, Eastern Division, or the California Superior Court for the County of Riverside. Both parties hereby irrevocably submit and consent to the exclusive jurisdiction of said court and consent to venue therein. ANY ACTION BROUGHT BY BUYER MUST BE COMMENCED WITHIN THE WARRANTY PERIOD NOTWITHSTANDING ANY STATUTORY PERIOD OF LIMITATION TO THE CONTRARY.
35. Choice of Language. It is the express intention of the Parties that all contracts and agreements between the Parties and all related documents be drafted in English. These Terms and Conditions and any other contract or agreement between the Parties shall be drafted, interpreted, construed, and governed by the English language. In the event any dispute arises with respect to these Terms and Conditions or any translation hereof, the meanings of all terms and provisions in these Terms and Conditions shall be interpreted in their original English form. The governing language of all correspondence related to reporting, negotiation, disputes, arbitration, and notice requirements shall be the English language. The Parties shall bear their own expenses for having text or other communications translated into the English language.
36. Miscellaneous. The invalidity or unenforceability of any provision of these Terms and Conditions or any portion thereof or any Invoice issued from Seller to Buyer shall not affect the validity or enforceability of any other provision or portions thereof. Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in these Terms and Conditions or any Invoice issued from Seller to Buyer. Failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of these Terms and Conditions or any Invoice issued from Seller to Buyer shall not be construed as a waiver or relinquishment of any right granted hereunder or of the future performance of such term, covenant or condition. Seller reserves the right to amend these Terms and Conditions from time to time. Seller’s sales representatives are without authority to change, modify, or alter these Terms and Conditions. These Terms and Conditions shall survive the termination or cancelation of any Invoice issued from Seller to Buyer.
37. Benefit; No Assignment by Buyer. These Terms and Conditions and any Invoice issued from Seller to Buyer are binding upon and inure to the benefit of Buyer and Seller and their respective successors and assigns. Notwithstanding the foregoing, Buyer may not assign these Terms and Conditions or any Invoice issued from Seller to Buyer, or any part thereof, nor delegate any obligations under these conditions of sale or any portion thereof in whole or in part, by operation of law or otherwise, without Seller’s advance, without Seller’s prior written consent. Any attempt to assign or delegate in violation of this section is null and void.
38. Alternative Dispute Resolution. It is the policy of Seller to attempt to settle all disputes through alternative dispute resolution techniques and to use litigation only as a last resort to settle any dispute, except in the case of collection of past-due accounts or when other circumstances dictate that litigation is advisable. Buyer agrees to make a good faith attempt to settle any disputes arising out of the purchase of the Products by Buyer through the use of alternative dispute resolution before instituting any litigation against Seller. In any dispute between the Parties, whether or not resulting in litigation, the Party substantially prevailing shall be entitled to recover from the other Party all reasonable costs, including, without limitation, reasonable attorneys’ fees.