1. Sale and Purchase of Goods. Mya Saray, LLC (“Seller”) hereby agrees to sell, and You (“Buyer”) hereby agree to purchase, goods of the description and quantity described on the Invoice attached hereto and incorporated herein by this reference ("Goods") on the terms and conditions set forth in this Agreement.
2. Purchase Price. Buyer agrees to pay the Purchase Price of the Goods as set forth on the Invoice attached hereto.
3. Payment Terms. The total amount of the Purchase Price shall be payable in full by Buyer according to the payment due date stated on the Invoice. Any portion of the Purchase Price unpaid past thirty (30) days shall be considered overdue. All amounts past due are subject to a late charge of the lesser of one and one-half percent (1 1/2%) per month (being eighteen percent (18%) per annum) or the highest lawful rate. In addition, Seller shall have the right to pursue any remedies available at law or as provided herein and shall be entitled to reimbursement from Buyer for Seller's costs of collection, including attorney fees, legal fees and costs and disbursements. Any checks returned by the bank for insufficient funds will be subject to a $20.00 accounting fee.
4. Delivery. Unless otherwise agreed in writing, delivery shall be made in accordance with Seller's shipping policy in effect on the date of shipment. Delivery dates provided by Seller are estimates only. Seller will make reasonable efforts to deliver in accordance with such dates; however, Seller will not be liable for failure to deliver as estimated. Unless otherwise agreed in writing by Seller, Goods shall be packaged according to Seller's standards and practices.
5. Inspection. Buyer shall inspect the Goods at delivery and shall notify Seller of any defects or discrepancies within seven (7) days of receipt of the Goods. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery and the terms and conditions of this Agreement.
6. Title and Risk of Loss; Grant of Security Interest. Title in the Goods shall not pass until full payment has been received by Seller. Buyer hereby grants and Seller hereby reserves a purchase money security interest in the Goods (including all accessions, accessories, parts, supplies, and replacements therefor) and the proceeds thereof until all obligations of Buyer to Seller from time to time are satisfied in full. Buyer hereby appoints Seller as its attorney-in-fact to prepare, sign and file in Buyer's name any financing statement or other document necessary to perfect Seller's security interest and also agrees that Seller may take any action necessary to perfect the security interest of Seller in the Goods. Notwithstanding the retention of title, all risk of loss or damage with respect the Goods, however caused, shall pass to Buyer upon delivery by Seller to Buyer or Buyer's representative.
7. Limited Warranty. Seller supplies as its sole warranty that the stem portions of any Goods sold shall have be free from rust and discoloration for three (3) years from the date of Buyer’s Receipt. During the warranty period, Seller will, at its option: (1) provide replacement parts necessary to repair the Goods, (2) replace the Goods with a comparable product, or (3) refund the amount paid by Buyer for the Goods, LESS DEPRECIATION, upon return. The warranties provided for herein shall be governed by Seller's warranty policies in effect on the date of shipment. Seller shall have no obligation to Buyer with respect to providing any warranty on any Goods for which Seller has not received full payment from Buyer. Seller's warranty may only be assigned and passed through by Buyer to a consumer and never to another Merchant.
SELLER NEITHER ASSUMES, NOR AUTHORIZES, ANY OTHER PERSON PURPORTING TO ACT ON ITS BEHALF TO MODIFY OR CHANGE THIS WARRANTY, NOR TO ASSUME FOR IT ANY OTHER WARRANTY OR LIABILITY CONCERNING THE GOODS.
8. Secondary Warranty and Duty to Avoid Confusion. Seller hereby warrants that hookahs bearing the MYA brand, unless otherwise stated, are all designs original to MYA for which MYA holds the copyright and which, to the knowledge of Seller, infringe no trademarks registered in any G8 country. Counterfeits and copies of MYA hookahs and accessories are myriad and worldwide. Buyer agrees that during the period for which Buyer possesses MYA hookahs and for a period of two (2) years beyond its last documented sale of a MYA hookah, acquired from any seller of genuine MYA hookahs, Buyer will not possess, sell, obtain, or display physically or in marketing literature, third party hookahs that are copies in appearance of MYA hookahs, bases/bottles or stems (individually or together), or copies in appearance of the MYA QT, BAMBINO, GELATO, MX, VENTO, PETITE, and MOZZA. Buyer will refrain from placing MYA accessories upon displayed hookahs, physical or pictorial, excepting that such hookahs (or packaging displayed nearby) bear a prominent, written indication of the source of such hookahs bearing MYA accessories. Buyer knows the designs of hookahs it possesses and the six listed hookahs.
9. Disclaimer of Warranty/Limitation of Liability. Seller undertakes no responsibility for the quality of the Goods or that the Goods will be fit for any particular purpose for which Buyer may be buying the Goods, except as otherwise provided in this Agreement, and Seller disclaims all other warranties and conditions, express or implied. The right to return defective Goods, as described in Section 7 above, shall constitute Seller's sole liability and Buyer's exclusive remedy in connection with any claim of any kind relating to the quality, condition or performance of any Goods, whether such claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, or otherwise.
SELLER (INCLUDING ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, ALL OF WHICH ARE REFERRED TO HEREIN COLLECTIVELY AS THE "SELLER AFFILIATES") SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCE TO BUYER OR ANY OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE GOODS OR OTHERWISE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF THE GOODS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT EQUIPMENT, FACILITIES OR SERVICES, DOWN TIME, BUYER'S TIME, LOST DATA, INJURY TO PROPERTY OR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF SELLER OR ANY OF THE SELLER AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
IN NO EVENT SHALL SELLER OR ANY SELLER AFFILIATE BE LIABLE TO BUYER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS IN EXCESS OF THE NET PURCHASE PRICE OF THE GOODS ACTUALLY DELIVERED TO AND PAID FOR BY BUYER HEREUNDER.
SELLER DISCLAIMS ANY OTHER WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE GOODS AND NONE OF SELLER OR ANY SELLER AFFILIATE SHALL HAVE ANY DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS BUYER FROM AND AGAINST ANY OR ALL DAMAGES OR COSTS INCURRED BY BUYER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR VIOLATION OF COPYRIGHTS BY ANY OF THE GOODS.
10. Force Majeure. Seller shall not be held responsible for any failure of performance to make timely delivery of all or any part of the Goods in the event such failure was due, in whole or in part, to federal, provincial or municipal action, statute, ordinance or regulation, strike or other labor trouble, fire or other damage to or destruction of, in whole or in part, the Goods or the manufacturing facility for the Goods, the lack of or inability to obtain raw materials, labor, fuel, electrical power, water or supplies, or any other cause, act of God, contingency or circumstances not subject to the reasonable control of Seller, which causes delays or hinders the manufacture or delivery of Goods. Seller shall determine in good faith the extent to which it can reasonably control a cause, contingency, or circumstance that affects the performance of its obligations.
11. General. Buyer may not assign this Agreement without Seller's written consent. Seller and its subsidiaries and affiliates are intended beneficiaries of this Agreement. If there is any inconsistency between this Agreement and any other agreement included with or relating to the Goods, this Agreement shall govern. This Agreement may not be modified, altered or amended without the written agreement of Seller. Any additional or altered terms attached to any order submitted by Buyer shall be null and void, unless expressly agreed to in writing by Seller. Violation of the terms of this Agreement shall result in reasonable attorneys’ fees for the prevailing party. If any term of this Agreement is illegal or unenforceable, the legality and enforceability of the remaining provisions shall not be affected or impaired. This Agreement shall be interpreted under the laws of the State of Virginia, without giving effect to conflicts-of-law rules; and in the event of a dispute under this Agreement; Buyer submits to the exclusive jurisdiction and venue of the courts of the Commonwealth of Virginia USA and hereby waives any objection to such jurisdiction and venue.
