Fuked Up’s Terms and Conditions for the Sale of Products
1. General. Sale of any Products is expressly conditioned on Buyer’s assent to the Contract. Seller limits acceptance to the Contract and expressly objects to any additional or different terms proposed by Buyer. No Buyer form shall modify the Contract, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of the Contract. Any order to purchase Products shall constitute Buyer’s assent to the Contract.
Seller has made every effort to display as accurately as possible the colors and images of its products that appear in its communications and marketing materials. Seller cannot guarantee that the display of any color on any of Buyer’s devices will be accurate.
Seller reserves the right to limit the sales of its products to any person, or in any geographic region or jurisdiction. Seller may exercise this right on a case-by-case basis. Seller reserves the right to limit the quantities of any products that it offers. All descriptions of products or product pricing are subject to change at any time without notice in Seller’s sole discretion. Seller reserves the right to discontinue any product at any time. Any offer for any product is void where prohibited.
a) Sale to minors is prohibited. YOU MUST BE 21 YEARS OF AGE OR OLDER TO PURCHASE OUR PRODUCTS. By consenting to these purchase terms and conditions you hereby confirm that you are 21 years of age or older.
There may be information in Seller’s communications or marketing materials that contains typographical errors, inaccuracies or omissions that may relate to, among other things, product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. Seller reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any such information is inaccurate at any time without prior notice (including after Buyer has submitted an order).
Seller undertakes no obligation to update, amend or clarify any information, including without limitation, pricing information, except as required by law. No update should be taken to indicate that all information has been modified or updated.
2. Definitions. “Buyer” means the entity identified on the Order Form to which Seller is providing Products under the Contract.
“Contract” means the completed Order Placed and Paid by Buyer and Seller for the sale of Products, together with these Terms.
“Contract Price” means the agreed price stated in the Contract for the sale of Products.
“Order Form” means the order form completed and executed by Buyer and Seller for the sale of Products.
“Products” means the materials and goods Seller has agreed to supply to Buyer under the Contract.
“Seller” means the entity providing Products under the Contract.
“Terms” means these Fuked Up Terms and Conditions for the Sale of Products.
3. Delivery and Shipping Terms. Title and risk of loss in all Products sold hereunder shall pass to Buyer upon Seller’s delivery to the carrier at the shipping point.
Buyer shall pay all delivery costs and charges. Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed without interruption. If Products delivered do not correspond in quantity, type or price to those itemized in the Order Form, Buyer shall so notify Seller within one (1) day after receipt.
Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the Order Form respecting such Products to reflect the actual quantity delivered.
4. Cancellation of Order. Buyer may cancel its order only with the prior written consent of Seller, which Seller may withhold in its sole discretion. All cancelations will be subject to payment by Buyer to Seller of reasonable and proper cancelation charges. Buyer may return only unopened Products within one (1) day of delivery at its sole cost. No returns of special, custom or made-to-order Products will be permitted.
Seller reserves the right to refuse any order Buyer places with it for any reason. Seller may, in its sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same or a related customer account, the same payment method, and/or orders that use the same or a related shipping address. In the event that Seller makes a change to or cancels an order, Seller may attempt to notify Buyer by contacting the e-mail and/or address/phone number provided on the relevant Order Form. Buyer agrees to provide current, complete and accurate purchase and account information for all purchases made. Buyer agrees to promptly update its account and other information, so that Seller can complete transactions and contact Buyer as needed.
5. Contract Price. Buyer shall purchase the Products from Seller at the Contract Price. All prices shall be confidential and Buyer shall not disclose such prices to any third party. All Contract 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 shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. The Contract Price excludes shipping and handling charges, which are the obligation of Buyer. Discount codes do not work with sales or promotions.
6. Payment. Seller is not obligated to send Products to Buyer unless and until the full amount of the Contract Price is received by Seller.. Seller shall provide its wire instructions to Buyer. Buyer shall not withhold payment of any amounts due and payable to Seller by reason of any set-off of any claim or dispute with Seller.
7. Buyer’s Representations and Warranties.
a. Buyer has full power and authority and holds all requisite governmental licenses, permits and other approvals to enter into and perform its obligations under the Contract, and purchase the Products.
b. Buyer has the capacity, power and authority to execute, deliver and carry out the terms and provisions of the Contract and has taken all necessary action, partnership, corporate or otherwise, to authorize the execution, delivery and performance of the Contract. Buyer has duly executed and delivered the Contract and the Contract constitutes the legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and subject to general principles of equity.
c. Neither the execution, delivery nor performance by Buyer of the Contract nor compliance with the terms and provisions thereof will (i) contravene any applicable provision of any law, statute, rule, regulation, order, writ, injunction or decree of any court or governmental authority that has jurisdiction over Buyer, (ii) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien upon any of the property or assets of Buyer pursuant to, the terms of any material indenture, loan agreement, lease agreement, mortgage, deed of trust, agreement or other material instrument to which Buyer is a party or by which it or any of its property or assets is bound or (iii) violate any provision of Buyer’s organizational documents.
8. Prohibited Uses.
a. Buyer agrees not to use any Products for any unlawful or unauthorized purpose;
b. to solicit others to perform or participate in any unlawful acts;
c. to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; or
d. to infringe upon or violate Seller’s intellectual property rights or the intellectual property rights of others.
9. Disclaimer of Warranties. All Products are provided ‘as is’ for Buyer, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement. Seller personnel are not authorized to alter this disclaimer of warranty.
10. Limitation of Liability. In no case shall Seller, its parent, subsidiaries, directors, managers, members, officers, employees, affiliates, agents or contractors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special or consequential damages of any kind, whether based in contract, tort (including negligence), strict liability, regulatory, criminal, or otherwise, arising from the Contract or Buyer’s, or a third party’s use or sale of any Products.
In no event shall Seller’s aggregate liability arising out of or related to a Contract, whether based in contract, tort (including negligence), strict liability or otherwise, exceed the total of the amount paid to Seller for the Products sold to Buyer under the Order Form for such Contract. For the avoidance of doubt, this provision applies to each Contract and its related Order Form on a one-off basis.
This limitation of liability is a material basis for the Contract and reflects the allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Products at the Contract Price.
11. Indemnification. Buyer agrees to indemnify, defend and hold harmless Seller and its parent, subsidiaries, affiliates, partners, members, managers, officers, directors, agents, contractors and employees, from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) Buyer’s violation or breach of any term of this Contract or any applicable law or regulation, whether or not referenced herein; (ii) Buyer’s violation of any rights of any third party; (iii) Buyers negligence or misconduct; (iv) Buyer’s use, misuse or sale of any Products; (v) any third party’s use of the Products through Buyer.
12. Intellectual Property. Nothing in the Contract is to be construed as a grant or assignment of any license or other right to Buyer of any of Seller’s or its affiliates’ intellectual property rights, whether patent, trademark, trade secret, copyright or otherwise.
13. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Contract with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Contract and such failure continues for thirty (30) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the provisions of the Contract, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. Representations and Indemnities to Survive Delivery. The indemnities, agreements, representations warranties and other statements of Buyer set forth in or made pursuant to this Contract will remain in full force and effect, regardless of any investigation made by or on behalf of Seller or any of its partners, officers or directors or any controlling person, as the case may be, and anything herein to the contrary notwithstanding, will survive delivery of and payment for the Products sold hereunder and any termination of the Contract.
15. Non-Reliance. Buyer acknowledges and represents that in entering into this Contract it does not rely on any statement, representation, or warranty of Seller other than those expressly set out in the Contract. Buyer agrees that it is not relying on any representations or advertisements made by Seller in Buyer’s decision to purchase Products and is using its own independent judgment and legal review to inform its purchase decisions. Seller is not liable for any changes in law, law enforcement actions, governmental agency actions, or other legal actions which may implicate or involve Products purchased by Buyer, including products liability actions.
16. No Representations and Warranties; Implied Terms. Except as expressly set forth in the Contract, (i) Buyer acknowledges and represents and it is the case that Seller does not make any representation or warranty, written or oral, express or implied, and (ii) all warranties, representations, conditions, terms and undertakings, express or implied, whether by statute, common law, custom, trade usage, course of dealings or otherwise (including without limitation as to quality, performance or fitness or suitability for purpose) in respect of the Products to be provided by the Seller are excluded to the fullest extent permitted by law.
17. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of Seller, any right, remedy, power or privilege hereunder shall operate 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. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
18. Integration. The Contract constitutes the entire agreement and understanding between Buyer and Seller relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, between Buyer and Seller relating to the subject matter hereof (including, but not limited to, any prior versions of the Terms).
19. Governing Law. THE CONTRACT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF Wyoming AND THE LAWS OF THE UNITED STATES APPLICABLE THEREIN (EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE WHICH MIGHT REFER SUCH CONSTRUCTION TO THE LAWS OF ANOTHER JURISDICTION).
20. Submission to Jurisdiction; Waivers. Buyer hereby irrevocably and unconditionally:
a. submits for itself and its property in any legal action or proceeding relating to the Contract, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of Wyoming or of the United States for the District of Wyoming, and any appellate court from any thereof, in each case which are located in the District Court of Sheridan in the county of Sheridan;
b. consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
c. agrees that service of process in any such action or proceeding may be effected in accordance with the local rules of civil procedure or by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to Buyer at its address set forth in the relevant Order Form or at such other address of which Seller shall have been notified by Buyer;
d. agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and
e. waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this paragraph any special, exemplary, punitive or consequential damages.
21. Waiver of Jury Trial. Buyer hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by a jury in any legal proceeding arising out of or relating to the Contract or the transactions contemplated hereby.
22. Notices. All notices, requests and demands to or upon the respective parties hereto shall be in writing (including by email transmission) to be effective and, unless otherwise expressly provided herein, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service or personally delivered, shall be deemed given when received and, if transmitted by email, shall be deemed given when the email is sent, in each case at the addresses (or email addresses) set forth on the face of the Order Form or to such other address that may be designated by the receiving party in writing.
23. No Advisory or Fiduciary Relationship. Buyer acknowledges and agrees that (i) the purchase and sale of Products pursuant to the Contract is an arm’s-length commercial transaction between Buyer, on the one hand, and Seller, on the other hand, (ii) in connection with the purchase and sale contemplated hereby and the process leading to such transaction, Seller is and has been acting solely as a principal and is not the agent or fiduciary of Buyer, or its stockholders, creditors, employees or any other party, (iii) Seller has not assumed or will not assume an advisory or fiduciary responsibility in favor of Buyer with respect to the purchase and sale contemplated hereby or the process leading thereto and Seller has no obligation to Buyer with respect to the purchase and sale contemplated hereby except the obligations expressly set forth in the Contract, (iv) Seller and its affiliates may be engaged in a broad range of activities that involve interests that differ from those of Buyer, and (v) Seller has not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and Buyer has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
24. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to samples, documents, data, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Contract is confidential, solely for the use of performing or entering into this Contract and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this paragraph. This paragraph does not apply to information that is: (i) in the public domain; (ii) known to Buyer at the time of disclosure; or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party.
25. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national or local emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, law enforcement action, governmental agency action, change in law, or other adverse events which make performance of the contract impossible.
26. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this paragraph is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Contract.
27. Successors. The Contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, and no other person will have any right or obligation hereunder.
28. Severability. In case any provision in or obligation under the Contract shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
29. Ambiguities. Any ambiguities in the interpretation of the Contract shall not be construed against the drafting party.
30. Effectiveness of the Contract. The Contract shall become effective upon the execution and delivery of an Order Form by the parties thereto.
31. Counterparts. An Order Form may be executed in any number of counterparts and by the different parties thereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of a signature page of an Order Form by electronic means shall be effective as delivery of a manually executed counterpart of an Order Form..
32. Headings. The paragraph headings contained in these Terms are for reference purposes only and shall not affect the meaning or interpretation of the Contract.