WAG’N TAILS® MOBILE CONVERSIONS, LLC TERMS AND CONDITIONS APPLICABLE TO ALL SALES ORDERS
These Terms and Conditions Applicable to All Sales Orders (the “Terms and Conditions”) are incorporated into, and made a part of, every sales order offered by and submitted to Wag’n Tails® Mobile Conversions, LLC (“Wag’n Tails®”) for the purchase of any goods and/or services to be furnished by Wag’n Tails®. The Terms and Conditions are, and shall be deemed to be, a material and essential part of all sales orders submitted to Wag’n Tails®, and the acceptance of a sales order by any purchaser is expressly limited to, and conditioned upon, the terms of the sales order (including these Terms and Conditions, which are incorporated into all sales orders by this reference). Any additional or different terms that a purchaser may propose (whether in a signed sales order, any acceptance or confirmation documents, any other documents that may be submitted to Wag’n Tails®, or otherwise) are expressly objected to and rejected by Wag’n Tails®. Accordingly, the execution of a sales order and submission of the same to Wag’n Tails® shall constitute the purchaser’s acceptance of, and agreement to be bound by, these Terms and Conditions. These Terms and Conditions are subject to change, in whole or in part, by Wag’n Tails®, at any time, and without further notice, in Wag’n Tails’® sole discretion. Any sales order submitted to Wag’n Tails® shall be subject to any and all Terms and Conditions in effect on the date on which such sales order is submitted to Wag’n Tails®. Wag’n Tails’® current Terms and Conditions are available upon request, and may also be viewed online at the following website: www.wagntails.com/termsandconditions.
TERMS:
Payment in full of all invoiced amounts, including taxes, if any, for any goods and/or services ordered from Wag’n Tails® must be received by Wag’n Tails® prior to delivery of the goods and/or services ordered.
UNANTICIPATED CIRCUMSTANCES:
Delivery dates are estimated and may be subject to change or delay. Wag’n Tails® shall make reasonable efforts to keep its delivery commitments; however, unanticipated circumstances may delay delivery of the goods, and Wag’n Tails® shall have no liability for such delays. In the event of such delays, the delivery date shall be extended for such additional time as may be necessary under the circumstances, as determined in Wag’n Tails’® sole discretion. In addition, if Wag’n Tails’® material or freight costs increase as a result of any unanticipated circumstances, the amount to be paid by the purchaser under any existing sales orders shall be
adjusted upward by the amount of such increased costs, and the purchaser shall pay such increased costs in accordance with Wag’n Tails’® Terms and Conditions. Wag’n Tails® shall not, under any circumstances, be liable or responsible to the purchaser for any failure or delay in fulfilling or performing any sales orders, nor be deemed to have defaulted or breached any of its obligations, when and to the extent such failure or delay is caused by or results from acts beyond Wag’n Tails’® reasonable control, including, without limitation, the following force majeure events: (a) acts of God;
(b) flood, fire, earthquake, tornado, or other natural disaster; (c) war, invasion, hostilities, terrorist threats or acts, or riots or other civil unrest; (d) government order, laws, or actions; (e) embargoes or blockades in effect on or after the date of any sales orders; (f) national or regional emergencies; (g) strikes, labor stoppages or slowdowns, supply disruptions or shortages, or other industrial or supply-related disturbances; or
(h) epidemics, pandemics, or other disease-related events or occurrences. In the event of any force majeure events, Wag’n Tails® shall give notice to the purchaser stating the period of time the force majeure event is expected to continue. Wag’n Tails® shall, then, use diligent efforts to end the failure or delay and minimize the effects of such force majeure event. Wag’n Tails® shall, also, resume the performance of its obligations as soon as reasonably practicable after the cessation of the force majeure event. In the event that Wag’n Tails’® failure or delay remains uncured for a period of 180 consecutive days following its written notice of the force majeure event, either party may thereafter terminate the associated sales order upon 15 days’ prior written notice.
FURNISHING OF GOODS AND SERVICES:
Wag’n Tails® shall use reasonable efforts to meet any performance dates specified in any sales orders, which said dates shall be estimates only. With respect to any goods or services to be furnished by Wag’n Tails®, the purchaser of such goods or services shall cooperate fully with Wag’n Tails® in all matters relating to the goods and services; respond promptly to any request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Wag’n Tails® to furnish the goods and services in accordance with any associated sales orders; provide such materials or information as Wag’n Tails® may reasonably request and considers reasonably necessary to furnish the goods and services in a timely manner; ensure that such materials and information are complete and accurate in all material respects; and obtain and maintain all
necessary licenses and consents, comply with all applicable laws in relation to the goods and services, and fully comply with these Terms and Conditions, throughout Wag’n Tails’® furnishing of the goods and/or services.
SUPENSION OF PERFORMANCE:
If, in Wag’n Tails’® sole discretion, doubt exists as to the purchaser’s financial condition or responsibility, or if the purchaser is past due in the payment of any amounts due and owing to Wag’n Tails®, Wag’n Tails® reserves the right, without liability and without prejudice to any other rights or remedies, to suspend the furnishing, and decline shipment, of the goods and/or services until Wag’n Tails® receives payment of all amounts due and owing, or until Wag’n Tails® receives adequate assurance of payment as determined by Wag’n Tails® in its sole discretion.
INSPECTION:
The purchaser of any goods and/or services furnished by Wag’n Tails® shall inspect, or arrange for an authorized agent of purchaser to inspect, all goods and/or services prior to the goods leaving Wag’n Tails’® premises. The purchaser, or the purchaser’s agent, must then notify Wag’n Tails® in writing of (a) any visible damage or patent non-conformities in any goods furnished or serviced by Wag’n Tails® before such goods depart Wag’n Tails’® premises, or (b) any latent damage or non-conformities in any goods furnished or serviced by Wag’n Tails® within 30 days after such goods departed Wag’n Tails’® premises. If the purchaser shall fail to timely deliver such written notice to Wag’n Tails® as required above, the goods and/or services furnished by Wag’n Tails® shall be deemed to conform to the terms of the purchaser’s sales order, and the purchaser shall be bound to accept and pay for the goods in accordance with Wag’n Tails’® Terms and Conditions. In addition, the purchaser expressly waives any right the purchaser may have to revoke acceptance after such failure to provide timely written notice as required above. The purchaser also shall not, under any circumstances, return any goods to Wag’n Tails® without Wag’n Tails’® prior written consent.
LIMITATION OF LIABILITY:
Except as otherwise provided in Wag’n Tails’® Limited Warranty, should any goods or services furnished by Wag’n Tails® not conform to the purchaser’s sales order, Wag’n Tails’® only, and exclusive, liability shall be to repair or replace the non-conforming goods and/or services, or to refund the amounts paid for such goods and/or services in exchange for the return of such goods and/or services, if returnable, as Wag’n Tails® may elect
or determine in its sole discretion, if (a) the purchaser properly notifies Wag’n Tails® in writing of such non- conformities in the goods and/or services within the time limits set forth above; (b) Wag’n Tails’® inspector determines that such goods do not conform to the specifications or descriptions in the purchaser’s sales order; and (c) within thirty (30) days of Wag’n Tails’® written request, the purchaser delivers the goods to Wag’n Tails® or such other facility as Wag’n Tails® may direct in writing. Wag’n Tails’® liability shall not, under any circumstances, exceed the actual amount paid by the purchaser for the goods and/or services at issue, nor shall Wag’n Tails®, under any circumstances, be liable for any consequential damages, incidental damages, special damages, punitive damages, or other losses or damages of any kind or nature, whether direct or indirect, including, without limitation, any costs or expenses for transportation, fuel, food, lodging, telephone calls, towing charges, bus or taxi fares, airfare, car rental charges, on-site service calls, lost profits, lost opportunities, lost time, business interruption, inconvenience, or loss of use or commercial use of the affected goods.
TAXES:
The amount of any sales, use, revenue, excise, or other taxes applicable to the sale of any goods and/or services by Wag’n Tails® shall be added to the purchase price and paid by the purchaser as and when the purchase price is due.
LIMITED WARRANTY:
WAG’N TAILS® PROVIDES A LIMITED WARRANTY THAT IS INCORPORATED INTO THESE TERMS AND CONDITIONS BY THIS REFERENCE. THE LIMITED WARRANTY MAY ALSO BE VIEWED ONLINE AT WWW.WAGNTAILS.COM/WARRANTYINFO, AND IF APPLICABLE, IS INCLUDED WITHIN THE DOCUMENTATION PROVIDED TO THE PURCHASER UPON DELIVERY OF THE GOODS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE LIMITED WARRANTY, WAG’N TAILS® MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY GOODS AND/OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, ALL OF WHICH ARE HEREBY EXPRESSLY NEGATED AND DISCLAIMED.
RISK OF LOSS:
Risk of loss on all goods ordered from or furnished by Wag’n Tails® shall pass to the purchaser immediately upon (a) the purchaser’s receipt of the goods at Wag’n Tails’® facility, or (b) Wag’n Tails’® tender of the goods to the purchaser’s designated shipping carrier, at Wag’n Tails’® facility, for shipment to the purchaser.
INDEMNIFICATION:
The purchaser shall indemnify, defend, and hold harmless Wag’n Tails® and its officers, directors, shareholders, employees, agents, affiliates, contractors, representatives, successors, and assigns from and against any and all claims, demands, causes of action, judgments, fines, penalties, losses, damages, liabilities, costs, expenses, and attorneys’ fees resulting or arising in whole or in part, directly or indirectly, from (i) the use of the goods by the purchaser or any third party; (ii) the sale, transfer, or assignment of the goods by the purchaser to any third party; (iii) any personal injury, death, property damage, or other damages, injuries, losses, or claims caused by, arising out of, or in any way relating to, the use, sale, transfer, or assignment of the goods by the purchaser or any third party; (iv) any violation of these Terms and Conditions by the purchaser; or (v) any violation of any local, state, or federal law or regulations by the purchaser.
BUYER’S ACTS OR OMISSIONS:
If Wag’n Tails’® performance of its obligations under these Terms and Conditions is prevented or delayed by any act, omission, negligence, or misconduct of the purchaser or its agents, representatives, contractors, subcontractors, consultants, or employees, Wag’n Tails® shall not be deemed in breach of its obligations under any associated sales orders or these Terms and Conditions, nor shall it be liable for any costs, expenses, charges, damages, or losses sustained or incurred by the purchaser, in each case, to the extent arising directly or indirectly from such prevention or delay.
NO THIRD-PARTY BENEFICIARIES:
These Terms and Conditions, and any associated sales orders, are for the sole benefit of Wag’n Tails’® and the purchaser, and nothing in these Terms and Conditions or any associated sales orders, either express or implied, is intended to confer, or shall have the effect of conferring, upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions or any associated sales orders.
GOVERNING LAW; EXCLUSIVE VENUE:
Wag’n Tails’® Terms and Conditions, and any associated sales orders, shall be governed by, and construed in accordance with, the laws of the State of Indiana, without regard to its conflicts or choice of laws principles. The exclusive venue for any dispute or litigation arising from or relating to Wag’n Tails’® Terms and Conditions, any sales orders, or any transaction or business dealings between Wag’n Tails® and the purchaser, shall be the state courts located in the County of St. Joseph, State of Indiana, or the United States District Court for the Northern District of Indiana, South Bend Division.
WAIVER:
No waiver by Wag’n Tails® of any of these Terms and Conditions shall be effective unless explicitly set forth in writing and signed by Wag’n Tails®. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms and Conditions shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. No course of dealing between the purchaser and Wag’n Tails® shall have the effect of modifying or altering Wag’n Tails’® Terms and Conditions.
MISCELLANEOUS:
No duties or obligations of the purchaser under any sales orders may be assigned or delegated without Wag’n Tails’® prior written consent. If any of Wag’n Tails’® Terms and Conditions are held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions of Wag’n Tails’® Terms and Conditions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby, and Wag’n Tails’® Terms and Conditions shall be construed as if such invalid, void, or unenforceable provisions were omitted. Wag’n Tails’® Terms and Conditions and any associated sales orders set forth the entire agreement between Wag’n Tails® and the purchaser. No other terms, conditions, or understandings, whether oral or written, shall be binding upon Wag’n Tails®, unless hereafter made in writing and signed by an authorized representative of Wag’n Tails®. These Terms and Conditions may only be amended or modified by a written instrument that expressly amends these Terms and Conditions and is signed by an authorized representative of Wag’n Tails’®. Wag’n Tails’® Terms and Conditions shall be binding upon the purchaser and shall inure to the benefit of Wag’n Tails®.
