Healthy Commerce, Inc. (dba SympathyGiftShop.com)
Terms of Sale and Use
All sales of products, services and display of information by Healthy Commerce, Inc. (dba SympathyGiftShop.com) ("SympathyGiftShop") are made on the following terms and conditions. In these Terms of Sale, any products sold by SympathyGiftShop to the buyer ("Buyer") are referred to below as "goods," and any services sold by SympathyGiftShop to Buyer are called "services."
If Buyer has not otherwise agreed to these Terms of Sale, then Buyer's acceptance of delivery of, or payment for, the goods or services will constitute Buyer's agreement to these Terms. SympathyGiftShop objects to and will not agree to any terms that are additional to or different from these terms. Terms that are printed on or contained in a purchase order or other form prepared by Buyer which are additional to, in conflict with or inconsistent with those herein will be considered inapplicable and will have no force or effect.
- Order Acceptance.
Buyer's receipt of an electronic or other form of order confirmation does not signify SympathyGiftShop's acceptance of Buyer's order, nor does it constitute confirmation of SympathyGiftShop's offer to sell. SympathyGiftShop reserves the right at any time after receipt of Buyer's order to accept or decline Buyer's order for any reason. SympathyGiftShop reserves the right at any time after receipt of Buyer's order, without prior notice to Buyer, to supply less than the quantity ordered of any item. SympathyGiftShop may require additional verifications or information before accepting any order.
SympathyGiftShop will have the right to increase its prices at any time without notice. Payment for the products or services will be made in full before physical delivery of goods or services.
Delivery and Risk of Loss.
SympathyGiftShop or the manufacturer of the goods ("Manufacturer") will deliver the goods to Buyer on the terms set forth in SympathyGiftShop's quotation or acknowledgment, except that risk of loss of the goods will pass to Buyer upon identification of the goods to the contract between Buyer and SympathyGiftShop. Shipping, delivery and performance dates are estimates only, and time is not of the essence. SympathyGiftShop or Manufacturer may ship all the goods at one time or in portions from time to time. SympathyGiftShop will have the right, but no obligation, to determine the method of shipment and routing of the goods, unless otherwise agreed to by SympathyGiftShop in writing.
SympathyGiftShop's price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Buyer will be liable for all such taxes, whether or not SympathyGiftShop invoices Buyer for them. Buyer agrees to provide SympathyGiftShop in good faith with a tax/resale certificate as to the goods Buyer purchases from SympathyGiftShop, and SympathyGiftShop will be entitled to rely on the tax/resale certificate Buyer provides.
If SympathyGiftShop is not able to finish or deliver the goods to Buyer, or to perform the services, on time because of anything SympathyGiftShop cannot control (such as casualty, labor trouble, accidents or unavailability of goods, supplies or transportation), then the estimated delivery or performance time will be extended accordingly, and SympathyGiftShop will not be liable to Buyer for any damages caused by the delay.
SympathyGiftShop DOES NOT MAKE ANY WARRANTY AS TO THE GOODS OR SERVICES, EXPRESS OR IMPLIED, AND, IN PARTICULAR, DOES NOT MAKE ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. The only warranty applicable to the goods is the warranty (if any) provided to Buyer from Manufacturer. Buyer is solely responsible for determining the proper application and use of the goods. SympathyGiftShop will not have any tort liability with respect to any of the goods or services and will not be liable to Buyer or any other third party for consequential, incidental, punitive or other special damages of any kind whatsoever, including but not limited to lost profits or other financial damage, that arise from any product defect, delay, non-delivery or other breach. Buyer will not have any right of rejection or of revocation of acceptance of the goods. No person other than an officer of SympathyGiftShop may modify or waive these warranty limitations, and all modifications or waivers must be in writing.
Cancellation and Restocking.
- Buyer does not have any right to cancel its agreement to buy the goods or services from SympathyGiftShop. If, however, SympathyGiftShop agrees in writing to permit cancellation, Buyer agrees that such cancellation will be subject to restocking fees, if any.
- If Buyer fails to pay or perform any indebtedness or obligation that Buyer at any time owes to SympathyGiftShop, then SympathyGiftShop may consider Buyer's failure to be an anticipatory repudiation of any or all outstanding contracts that provide for SympathyGiftShop to sell goods or services to Buyer, and SympathyGiftShop may, without liability to Buyer, cancel any or all of those outstanding contracts.
Indemnity and Reimbursement.
Buyer will indemnify and hold harmless SympathyGiftShop with respect to all damages, losses, claims and expenses, including consequential and incidental damages and actual attorney fees, that SympathyGiftShop incurs as a result of Buyer's breach of any of Buyer's obligations under these Terms of Sale. If Buyer brings a claim against SympathyGiftShop arising out of or relating to this Agreement or the goods or services, and SympathyGiftShop ultimately prevails or Buyer eventually elects not to further pursue the claim, then Buyer will reimburse SympathyGiftShop for all expenses incurred by SympathyGiftShop in connection with such claim, including but not limited to actual attorney fees.
SympathyGiftShop has all rights and remedies that applicable law gives to SympathyGiftShop. SympathyGiftShop's rights and remedies are cumulative, and SympathyGiftShop may exercise them from time to time. SympathyGiftShop's waiver of any right on one occasion will not be a waiver of any future exercise of that right.
Time For Bringing Action.
Any action that Buyer brings against SympathyGiftShop for breach of this Agreement or for any other claim that arises out of or relates to the goods or their design, manufacture, sale or delivery or the services must be brought within one year after the cause of action accrues.
This agreement between SympathyGiftShop and Buyer will be considered to have been made in the State of California, and it will be governed by and interpreted according to California law. Either party may bring any action that arises out of or relates to this agreement in any federal or state court in San Diego, California, that has jurisdiction of the subject matter, and Buyer irrevocably consents that any such court will have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.
Complete Agreement; Amendments.
SympathyGiftShop's quotation and acknowledgment and these standard Terms of Sale contain the entire agreement between Buyer and SympathyGiftShop as to the subject matter hereof. Any change in this agreement must be in a writing signed by an authorized officer of SympathyGiftShop.