Terms of Service for Retailers
1.1. These Terms of Service for Retailers (the "Terms") apply to the purchase and sale of products and services (together, “Vendor Products”) through www.podfoods.co (the "Site"). These Terms are subject to change by Pod Foods Co. (referred to as "PFC", "us", "we", or "our" as the context may require) without prior written notice, at any time, in our sole discretion. Any changes to these Terms will be in effect as of the "Last Updated Date" referenced on the Site. You (or “Buyer”) should review these Terms prior to purchasing any product or service that is available through this Site. Your continued use of this Site after the "Last Updated Date" will constitute your acceptance of and agreement to such changes.
2.1. Our Site is a forum in which buyers can purchase goods to sell at retail and may also purchase certain services. Goods and services available for sale on this site (“Vendor Products”) are offered by independent Persons (“Vendors”) unless otherwise specified. Special fees, costs, or charges imposed by Buyers – including but not limited to special incentives or rebates, advertising participation, marketing programs, promotional costs, scanbacks, and product placement charges – are beyond the scope of transactions facilitated by our Site. These must be negotiated directly between Buyers and Vendors. Vendors are solely responsible for paying these charges.
2.3. AS STATED IN MORE DETAIL BELOW, PFC EXPRESSLY DISCLAIMS ALL WARRANTIES AND GUARANTEES – INCLUDING BUT NOT LIMITED TO MERCHANTABILITY AND FITNESS FOR PURPOSE – OF VENDOR PRODUCTS OFFERED ON OUR SITE AND, WITH RESPECT TO SERVICES, THAT THEY WILL BE TIMELY, UNINTERRUPTED, COMPETENT, SATISFACTORY, AND ERROR-FREE.
Capitalized terms have the meanings set out in this Section, or in the Section in which they first appear in these Terms:
- "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, whether civil, criminal, administrative, regulatory, or other, and whether at law, in equity, or otherwise.
- "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, this Person.
- "Business Day" means any day except Saturday, Sunday, or a federal holiday.
- "Claim" means any Action made or brought against a Person entitled to indemnification.
- "End User" means the retail customer (a natural person) who has acquired a Vendor Product from Buyer for his or her own use.
- "Governmental Authority" means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of the government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of this organization or authority have the force of Law), or any arbitrator, court, or tribunal of competent jurisdiction.
- "Government Order" means any order, writ, judgment, injunction, decree, stipulation, award, or determination entered by or with any Governmental Authority.
- “Intangible Business Assets” means assets developed by PFC, valuable to PFC’s business, whose loss, appropriation, or misuse would result in harm to PFC’s business, including but not limited to goodwill, reputation, PFC’s business relationships with Vendors participating on the Site, and unique products or services offered by third-parties on the Site.
- "Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, [application programming interfaces, architecture, files, records, schematics,] data, data files, and databases and other specifications and documentation; (e) Trade Secrets; and (f) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world.
- "Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.
- "Nonconforming Vendor Products" means any product received by Buyer from PFC under a Purchase Order that: (a) is not a Vendor Product; (b) does not conform to the specifications listed for the Vendor Product on this Site; or (c) on visual inspection, Buyer reasonably determines is otherwise Defective.
- "Order" means Buyer’s offer to purchase Vendor Products, through this Site, using the Site’s ordering processes and tools.
- "Party” means PFC or Buyer.
- “Patents” means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, petty patents, and patent utility models).
- "Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.
- "Personnel" means agents, employees, or subcontractors engaged or appointed by PFC or Buyer.
- "Price" means the price listed on the Site at the time an order is placed.
- "Vendor Products" means goods offered for sale on the Site.
- "Buyer" means a Person visiting this Site for the purpose of purchasing Vendor Products.
- "PFC's Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to PFC.
- "PFC's Trademarks" means all Trademarks owned by or licensed to PFC.
- "Trademarks" means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
- "Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.
- "USA" means the United States of America, including its territories, possessions, and military bases.
The Site is an online marketplace and PFC may in its sole discretion sell any offered Vendor Products to any site visitor.
5. Prohibited Acts.
5.1. Buyers shall not make any representations, warranties, guarantees, indemnities, similar claims, or other commitments:
- actually, apparently, or ostensibly on behalf of PFC, or
- to any End User regarding the Vendor Products, which representations, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in these Terms.
5.2. Buyers shall not engage in any unfair, competitive, misleading, or deceptive practices respecting PFC, PFC's Trademarks, Vendors, or Vendor Products;
5.3. Buyers shall not sell, either directly or indirectly, or assign or transfer, any Vendor Products to any Person when Buyer knows or has reason to suspect that the Person may resell any or all of the Vendor Products to a third party.
5.4. Buyer recognizes PFC’s significant investment in its Intangible Business Assets, that these are essential to PFC’s business, and that harm from their loss, misuse, appropriation, diminution, or derogation would be difficult to quantify. Therefore, Buyer agrees that it shall not purchase, attempt to purchase, or discuss purchasing products or services directly from Vendors or take any other action that could reduce the value of PFC’s Intangible Business Assets while Buyer is using the Site, and for one year after Buyer stops using the Site, whether due to PFC’s termination of Buyer’s access privileges or Buyer’s voluntary discontinuance. For the purposes of this section, “Vendors” includes all vendors identified on the Site on the date the Customer cancels its subscription.
6. Purchases of Vendor Products
6.1. An order placed through the Site is an offer to buy, under these Terms, all Vendor Products identified in your order. All orders must be accepted by us or we will not be obligated to sell Vendor Products to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
6.2. All discounts and promotions posted on this Site are subject to change without notice. We may change Vendor Product prices on 60 days’ notice. The price charged for a product or service will be the price advertised on this Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for shipping and handling. Taxes and charges will be added to your total price, and will be itemized in your shopping cart and in your order confirmation email. While we strive to display accurate price information we may misstate or fail to state information related to pricing and availability. We reserve the right to correct any errors at any time and to cancel any orders arising from such occurrences.
6.3. We accept credit cards for all purchases. You represent and warrant that (i) the information you supply to us in connection with your order is true, correct and complete, (ii) you are duly authorized to use the credit card, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.
6.4. PFC may, in its sole discretion, add or remove Vendor Products from the Site.
6.5. PFC shall use commercially reasonable efforts to supply Vendor Products listed on the Site, but in no event is required to supply any Vendor Product if PFC determines that:
- the Vendor Product is infringing;
- the sale would violate the Law;
- the sale would limit PFC's ability to fill orders of its other customers; or
- it does not have an adequate inventory of Vendor Products to fill the order.
7. Orders Procedure
7.1. Buyer shall place all orders for Vendor Products through this Site using the Site’s ordering processes and tools. By placing an order, Buyer purchases Vendor Products under these Terms.
7.2. PFC may, in its sole discretion, accept or reject any order. PFC may accept any order by confirming the order (whether by email confirmation, printed invoice, or otherwise) or by delivering the Vendor Products, whichever occurs first. No order binds PFC unless it has been accepted by PFC.
7.3. PFC may, in its sole discretion, without liability or penalty, cancel any order placed by Buyer and accepted by PFC, in whole or in part:
- if PFC discontinues its sale of Vendor Products or reduces or allocates its inventory of Vendor Products;
- if PFC determines that Buyer is in violation of its payment obligations under or has breached these Terms; or
- pursuant to PFC's rights under Section 10.04.
7.4. With the exception of Buyer's right under Section 9.03 to cancel an order, Buyer has no right to cancel or amend any order submitted by it.
8. Shipment and Delivery
8.1. PFC ships Vendor Products per an order’s direction. PFC may, in its sole discretion, without liability or penalty, make partial shipments of Vendor Products to Buyer. Each shipment constitutes a separate sale, and Buyer shall pay for the units shipped, whether the shipment is in whole or partial fulfillment of a Purchase Order.
8.2. Unless otherwise arranged, PFC delivers Vendor Products using PFC's or manufacturer's standard methods for packaging and shipping the Vendor Products. All Prices are FOB PFC’s facility.
8.3. Any time quoted for delivery is an estimate only. PFC uses commercially reasonable efforts to deliver Vendor Products on or before the requested delivery date. Subject to Section 21.20, PFC is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver, or delay in delivery. No delay in the shipment or delivery of any Product relieves Buyer of its obligations under these Terms, including accepting delivery of any remaining installment or other orders of Vendor Products.
9.1. We do not accept product returns or refunds. All product returns and refunds are the responsibility of the Vendor. The products offered on our Site are covered by the Vendors’ warranties, guarantees, and representations as detailed in their products’ descriptions on our Site.
9.2. PFC forms must be used for any claims made. Claims must be made not more than 14 days after Vendor Products are shipped to a Buyer.
9.3. Buyer acknowledges and agrees that its remedies lie exclusively with the Vendor.
10. Title and Risk of Loss.
10.1. Title to Vendor Products shipped under any order passes to Buyer on their delivery by PFC to the carrier.
10.2. Risk of loss to Vendor Products shipped under any order passes to Buyer on their delivery by PFC to the carrier.
11. Shipping Charges, Insurance and Taxes.
11.1. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer is responsible for all charges, costs, and taxes.
11.2. Payment Terms. PFC shall be paid by Buyer in connection with each Invoice in the manner and in the amount specified on the Invoice. PFC’s standard payment terms are Net 30 unless otherwise agreed upon in writing. Buyer shall make all payment hereunder in US Dollars. PFC does accept credit card payments in which case the credit card on file will be charged automatically upon order fulfillment.
11.3. Unsatisfactory Credit Status. If, at any time, PFC has reasonable grounds for concern that Buyer’s financial condition or creditworthiness is inadequate or unsatisfactory, and Buyer fails to provide adequate assurance of performance following a reasonable request by PFC, then in addition to Seller’s other rights under this Agreement, PFC may without liability of penalty, take one or more of the following actions:
- Modify the payment terms specified in 11.2 for outstanding and future purchases including requiring Buyer to pay cash in advance;
- reject and Purchase Orders received from Buyer;
- cancel any previously accepted Purchase Orders;
- delay or withhold any future shipment;
- accelerate the due date of all amounts owing by Buyer to PFC
11.4. Invoice Disputes. Buyer must Notify PFC in writing of any dispute with any invoice (along with [substantiating documentation/a reasonably detailed dispute description]) within 7 calendar days of the invoice’s date. Buyer is deemed to have accepted any invoice for which PFC does not receive a timely notice of dispute. Notwithstanding anything to the contrary, Buyer shall continue performing according to these Terms.
11.5. Late Payments. Except for invoices that Buyer has successfully disputed, all late payments, Buyer shall pay interest on all late payments, calculated daily at the lesser of 1.0% per month or the highest rate permissible under applicable Law.
11.6. No Set-off. Buyer shall not setoff, deduct, recoup, or withhold in any manner for amounts owed or payable by PFC under these Terms, applicable Law, or otherwise, and whether relating to PFC's breach, bankruptcy, or otherwise.
11.7. Security Interest. To secure Buyer's prompt and complete payment and performance of any and all present and future indebtedness, obligations and liabilities of Buyer to PFC, Buyer hereby grants PFC a first-priority security interest, in all inventory of goods purchased under this Agreement (including Goods and Non-Conforming Goods), wherever located. Buyer acknowledges that the security interest granted under this Section is a purchase-money security interest under the law governing this Agreement. PFC may file a financing statement for such security interest and Buyer shall execute such statements or other documentation necessary to perfect PFC's security interest in such Goods. Buyer also authorizes PFC to execute, on Buyer's behalf, such statements or other documentation necessary to perfect PFCs security interest in such Goods. Seller shall be entitled to all applicable rights and remedies of a secured party under applicable Law. The security interest granted by this Section shall automatically discharge upon payment for the applicable Goods and PFC shall file all documentation necessary to confirm release of any such lien.
12. Intellectual Property Rights
12.1. Ownership. Subject to any express rights and licenses explicitly granted by PFC in these Terms, Buyer acknowledges and agrees that:
- any and all of PFC's Intellectual Property Rights are the sole and exclusive property of PFC or its licensors;
- Buyer shall not acquire any ownership interest in any of PFC's Intellectual Property Rights under these Terms; and
- Buyer shall use PFC's Intellectual Property Rights solely for the purposes of performing its obligations under these Terms and only in accordance with these Terms and the instructions of PFC.
12.2. Trademark License Grant. These Terms do not grant either Party the right to use the other Party's or their Affiliates' Trademarks except as expressly set out under this Section.
13. Representations and Warranties
13.1. Buyer acknowledges and agrees that PFC makes no representations or warranties regarding any Vendor Products.
13.2. No warranty is extended to the Buyer under these Terms. BUYER'S SOLE RECOURSE FOR ANY BREACH OF ANY WARRANTY RELATING TO VENDOR PRODUCTS IS TO THE VENDOR. The Vendor is solely and exclusively liable for any claims arising out of the delivery of defective or nonconforming Vendor Products.
13.3. Buyer has no right to return any Vendor Product to PFC for repair, replacement, credit, or refund.
13.4. Warranties Disclaimer; Non-reliance. NEITHER PFC NOR ANY PERSON ON PFC'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF:
- FITNESS FOR A PARTICULAR PURPOSE;
- NON-INFRINGEMENT; OR
- PERFORMANCE OF PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND:
- Buyer ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY PFC, OR ANY OTHER PERSON ON PFC's BEHALF.
13.5. Services. Buyer purchases services (as Vendor Products) at Buyer’s own risk. PFC makes no representations or warranties of any kind with respect to services purchased through the Site, including any representation or warranty that the services will (a) be timely, competent, satisfactory, uninterrupted, and error-free; or (b) meet Buyer’s requirements or expectations. Any opinions, advice, statements, services, offers, or other information expressed or made available by Vendors and/or third parties through the Site are those of their respective authors or distributors and not PFC’s, its affiliates’, or any of its officers’, directors’, employees’, or agents’. Buyer acknowledges that PFC’s screening process for Vendor Products may differ from their own; including services, or other third party content. Buyer specifically agrees that PFC is not responsible for any content sent using and/or included in the Site by any Vendor or other third party.
14.1. Buyer General Indemnification. Subject to the terms and conditions of these Terms, Buyer (as "Buyer Indemnifying Party") shall indemnify, hold harmless, and defend PFC and its parent, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, "PFC Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees, and the costs of enforcing any right to indemnification under these Terms and the cost of pursuing any insurance providers, (collectively, "Losses"), arising out of or relating to any Claim of a third party:
- alleging or relating to any negligent act or omission of Buyer Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with Vendor Products;
- alleging or relating to any bodily injury, death of any Person or damage to real or tangible personal property caused by the acts or omissions of Buyer Indemnifying Party or its Personnel;
- relating to a purchase of a Vendor Products by any person or entity purchasing directly or indirectly through Buyer Indemnifying Party; or
- relating to any failure by Buyer Indemnifying Party or its Personnel to comply with any applicable Laws.
14.2. Buyer shall Notify PFC of third-party Claims against Buyer and reasonably cooperate in the investigation, settlement, and defense of such Claims at its own expense.
15. Limitation of Liability
15.1. No Liability for Consequential or Indirect Damages. IN NO EVENT IS PFC OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY PURCHASES UNDER THESE TERMS, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT PFC WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
15.2. Maximum Liability for Damages. IN NO EVENT SHALL PFC’s LIABILITY ARISING OUT OF OR RELATED TO PURCHASES MADE UNDER THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER AND AMOUNTS ACCRUED BUT NOT YET PAID BY BUYER TO PFC PURSUANT TO THESE TERMS IN THE 1 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF THE BUYER’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
16.2. Buyer acknowledges that it has not relied on any other express or implied representation or warranty, either written or oral, on behalf of PFC, including any representation or warranty arising from statute or otherwise in Law.
These Terms govern any and all matters arising now and at any time in the future out of Buyer’s purchase of Vendor Products through the Site.
All notices, requests, consents, claims, demands, waivers, and other communications under these Terms (each, a "Notice" and with the correlative meaning, "Notify") must be in writing and addressed to the other Party at its address set out below (or to any other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Notwithstanding the foregoing, Notice given by facsimile or email (with confirmation of transmission) satisfies the requirements of this Section. Except as otherwise provided, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
- Notice to PFC:
- 823 Congress Ave, Ste 150, Austin, TX 78701
- Email: firstname.lastname@example.org
- Attention: Pod Foods Co
- Notice to Buyer:
- [RESELLER ADDRESS]
- Facsimile: [FAX NUMBER]
- Email: [EMAIL ADDRESS]
- Attention: [TITLE OF OFFICER TO RECEIVE NOTICES]
For purposes of these Terms: (a) the words "include," "includes", and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto", and "hereunder" refer to these Terms as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, these Terms; (y) to an agreement, instrument, or other document means the agreement, instrument, or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means the statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The exhibits, schedules, attachments, documents, and appendices referred to herein are an integral part of these Terms to the same extent as if they were set out verbatim herein.
The headings in these Terms are for reference only and do not affect the interpretation of these Terms.
If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. On a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify these Terms to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
22. Duty to Remain Current.
Buyer has the duty to maintain its knowledge of these Terms and any changes to them as amended, from time to time, by PFC in its sole discretion. Lack of Notice shall not be effective to prevent the enforcement of these Terms against the Buyer.
No waiver under these Terms is effective unless it is in writing, identified as a waiver to these Terms, and signed by an authorized representative of PFC.
23.1. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
23.2. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from these Terms:
- any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under these Terms; or
- any act, omission, or course of dealing between the Parties.
24. Cumulative Remedies.
All rights and remedies provided in these Terms are exclusive.
Buyer may not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of PFC. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under these Terms. PFC may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of PFC's assets without the consent of Buyer.
26. Choice of Law.
There Terms and all matters arising out of or relating to these Terms are governed by, and construed in accordance with, the Laws of the State of Texas, USA, without regard to the conflict of laws provisions thereof to the extent these principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of Texas.
27. Choice of Forum.
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to these Terms, and all contemplated transactions, in any forum other than [NAME OF US DISTRICT COURT] or, if this court does not have subject matter jurisdiction, the courts of the State of Texas sitting in [POLITICAL SUBDIVISION], and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of these courts and agrees to bring any action, litigation, or proceeding only in [NAME OF US DISTRICT COURT] or, if this court does not have subject matter jurisdiction, the courts of the State of Texas sitting in [POLITICAL SUBDIVISION]. Each Party agrees that a final judgment in any action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
28. Waiver of Jury Trial.
Each Party acknowledges and agrees that any controversy that may arise under these Terms, including any exhibits, schedules, attachments, and appendices attached to these Terms, is likely to involve complicated and difficult issues and, therefore, each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms, including any exhibits, schedules, attachments, and appendices attached to these Terms, or the transactions contemplated hereby. [Each Party certifies and acknowledges that (a) no Representative of the other Party has represented, expressly, or otherwise, that the other Party would not seek to enforce the foregoing waiver in the event of a legal action, (b) it has considered the implications of this waiver, (c) it makes this waiver voluntarily, and (d) it has been induced to enter into these Terms by, among other things, the mutual waivers and certifications in this Section.
29. Force Majeure.
No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms except for any obligations of Buyer to make payments to PFC, when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemics, or other natural disasters; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, Law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional declared emergency related to health, safety, or security; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; or (i) other similar events beyond the reasonable control of the Impacted Party.
30. No Public Announcements or Trademark Use.
Unless expressly permitted under these Terms, neither Buyer nor PFC shall:
30.1. make any statement (whether oral or in writing) in any press release, external advertising, marketing, or promotion materials regarding the other party or its business unless:
- it has received the express written consent of the other party; or
- it must do so by Law or under the rules of any stock exchange to which it is subject; or
30.2. use the other party’s trademarks, service marks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the other party which shall not be unreasonably withheld or delayed.
31. Purchase for Export.
You represent and warrant that you are buying products or services from the Site for your own use or for resale within the US. You further represent and warrant that all purchases are intended for final delivery to locations within the US. Should you export any products purchased through the Site, you are solely responsible for complying with any customs laws, tariff requirements, export restrictions, and any other obligations related to the resale or export of products to foreign purchasers or foreign territories.