Terms and conditions agreement.

Acceptance. Purchaser’s order for products identified in Purchaser’s order (the "Products") is expressly conditional upon Purchaser’s assent to all of the terms and conditions contained herein and no others. No terms or conditions other than those stated herein, whether contained in Purchaser’s order or elsewhere the purports to very or are different than these terms and conditions or include additional terms and conditions shall be binding on VA Cell Inc. (“VA Cell”)  unless hereafter set forth in a writing signed by VA Cell. Purchaser’s assent to these Terms and Conditions shall be conclusively presumed from its receipt of any Products ordered.

Payment Terms.  Payment must be made prior to the pickup or delivery of the Products.

Taxes.  Any tax (other than income taxes of VA Cell), tariffs levies, duties, license or permit fees, excise or governmental charge imposed upon the production, sale, use, transportation or importation of, or value added to, the Products sold hereunder shall be timely paid by Purchaser in addition to the purchase price.

Delay.  VA Cell shall be excused for any failure to perform due to acts of God, war, riot, terrorist attacks, embargoes, fire, explosion, strike or other differences with workmen, shortages, delay in transportation, breakdown or accident, actions taken to comply with any law or regulation, or any other cause, without limitation, beyond VA Cell’s control in the reasonable operation of its business.

Delivery.  VA Cell shall be deemed to have satisfied its delivery obligations, when Purchaser or its agent have received product delivery  according to the terms of the order.  Purchaser is responsible, either itself or through its authorized freight forwarder, for inspecting the merchandise upon delivery for total carton count and condition. Any shortages or evidence of damage to merchandise must be noted on the freight forwarder’s delivery receipt. All shortages and damages must be reported in writing to our product fulfillment center either on the release form or delivery order form on the date of delivery. Purchaser will be required to itemize all shortages/overages by item number, color, and quantity. In the event that no such notice is given, it will be conclusively presumed that no shortages or damages exist.

 

Demurrage.  Notwithstanding any provision to the contrary, Purchaser shall be liable for all demurrage charges incurred after VA Cell delivers the Products to the freight forwarder.

Returns.  All sales are final.  Except for damaged Products, no Products may be returned.

Limited Warranty.  As to the Products sold to Purchaser, all product warrantees are provided by the manufacturer. VA Cell warrants good title and conformance to its standard specifications and those specifications, if any, agreed upon in writing by VA Cell. VA CELL MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VA CELL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL EXCEPT AS EXPRESSLY SET FORTH HEREIN. Purchaser shall promptly notify VA Cell of any suspected breach of VA Cell's warranties and hold the Products for VA Cell's inspection.

Limitation of Liability.  PURCHASER'S EXCLUSIVE REMEDY AND VA CELL'S EXCLUSIVE LIABILITY FOR THE BREACH OF ANY OF VA CELL'S WARRANTIES SHALL BE TO REPLACE NONCONFORMING PRODUCTS AT THE ORIGINAL POINT OF DELIVERY OR TO REFUND PURCHASER'S PURCHASE PRICE FOR THE NONCONFORMING PRODUCTS, WHICHEVER OPTION VA CELL SELECTS. VA CELL'S LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RESULTING FROM OR IN ANY WAY CONNECTED WITH THE PRODUCTS SHALL NOT EXCEED PURCHASER'S PURCHASE PRICE FOR THE PRODUCTS UPON WHICH SUCH LIABILITY IS BASED, REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT, OR OTHERWISE. IN NO EVENT SHALL VA CELL BE LIABLE TO PURCHASER FOR LOSS OF PROFITS OR REVENUE OR INTERRUPTION OF BUSINESS OR FOR ANY INCIDENTAL, CONSEQUENTIAL, DIRECT, SPECIAL OR PUNITIVE DAMAGES.

Waiver of Claims.  Regardless of prior delays, any claim from Purchaser from any cause, including, but not limited to, claims based on the quantity of goods received, shall be deemed waived unless made in writing within ten (10) days of the receipt by Purchaser of the goods to which such claim relates. No legal proceedings may be brought by Purchaser for any breach of this contract more than six (6) months after the date Purchaser receives such goods.

Indemnity.  Purchaser agrees to release, indemnify, defend and hold harmless VA Cell, and VA Cell's employees, officers, directors, shareholders, partners and affiliates from and against any and all loss, cost, damage, or expense, including legal fees, costs and expenses and actual or alleged injuries to and death of any person and loss of or damages to property arising, directly or indirectly, from (a) any violation of Purchaser of any applicable law, rule or regulation and (b) the Products sold hereunder.

Assignability.  Neither these Terms and Conditions nor any claim arising directly or indirectly out of or in connection herewith, will be assignable by either party or by operation of law, without the prior written consent of the other party. This document shall be binding upon and inure to the benefit of each party hereto and their respective permitted successors and assigns.

Attorneys’ Fees.  In the event that VA Cell must institute or engage counsel for a lawsuit against the Purchaser to collect any monies that is due hereunder or if VA Cell successfully defends against a lawsuit instituted by the Purchaser against it hereunder, then VA Cell shall be entitled to its costs and expenses to include reasonable attorneys’ fees and costs, at all levels, incurred in connection with such lawsuit.

Notices.  Notice by either VA Cell or Purchaser will be made only by facsimile or similar electronic transmission, effective on the first business day after confirmed receipt, or by letter addressed to the other party at its address shown herein, effective three business days after deposit with the U.S. Postal Services, postage prepaid, or one business day after deposit with a recognized overnight express service.

Arbitration and Disputes between the Parties. Any and all disputes, controversies and/or claims with respect to the transactions contemplated by these Terms and Conditions shall be submitted to arbitration and held in Miami-Dade County, Florida Such arbitration shall be administered by American Arbitration Association (“AAA”) pursuant to its Comprehensive Arbitration Rules (the “Arbitration Rules”). The parties shall each pay one-half of the costs of the arbitrator and the arbitrator shall thereafter award costs and attorneys’ fees to the prevailing party. The arbitration shall be binding and non-appealable, and may be entered as a final judgment in any court having jurisdiction over the award.

Jurisdiction, Applicable Law.  These Terms and Conditions shall be governed by the laws of the State of Florida, U.S.A. without regard to its conflict of laws provisions. The parties hereto expressly submit to the personal jurisdiction of the federal and/or state courts sitting in Miami-Dade County, Florida, and agree that such courts may be utilized if necessary to obtain injunction relief hereunder or to enforce any arbitration award hereunder. The Hague Convention and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the construction or interpretation of these Terms and Conditions or affect any of its provisions.

General.  Prices and other terms and conditions are subject to change by VA Cell without prior notice. VA Cell reserves the right to discontinue Product lines and to make changes in Products at any time. No supplement, modification or amendment of these Terms and Conditions will be binding upon VA Cell unless made in writing and signed by a duly authorized representative of VA Cell. These terms and conditions constitute the entire agreement of the parties with respect to its subject matter and supersede all previous agreements and understandings, whether written or oral between the parties regarding its subject matter.  In the event of any conflict or variance between the terms hereof and Purchaser's business terms, these terms shall prevail. In the event that any provision contained herein is held to be invalid or unlawful, such provision shall be severable from the remaining provisions hereof which shall remain in full force and effect. No waiver of any provision hereof shall constitute a waiver of any other provision, and no single provision shall be held to constitute a continuing waiver or a subsequent waiver.

 VA CELL INC. IS THE SELLER OF RECORD