Online Terms and Conditions of Sale
These Online Terms and Conditions of Sale (these “Terms”), together with the Purchase Order (as defined below), constitute the entire agreement by and between Caravela Coffee L.L.C., a North Carolina limited liability company (the “Seller”), and the person or entity identified on the Purchase Order (the “Buyer”), and govern the sale of each product identified on such Purchase Order (the “Products”) by the Seller to the Buyer through https://www.mercado.coffee/ (the “Site”).
1. SALE; PRICE; PAYMENT.
(a) These Terms apply to all Products purchased by the Buyer through the Site’s Product ordering page (each, a “Purchase Order”). All orders for Products by the Buyer shall be deemed to be an offer by the Buyer to purchase Products pursuant to these Terms. No Purchase Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until the Seller ships the Products to which such Purchase Order relates. Acceptance of delivery of the Products and/or Payment of the purchase price for the Products set forth in a Purchase Order shall be deemed conclusive evidence of the Buyer’s acceptance of these Terms. No variation or amendment to, or waiver of, these Terms will be binding unless agreed to in writing by the authorized representatives of each of the Buyer and the Seller.
(b) Unless expressly agreed otherwise by the Seller in writing, the price for the Products shall equal the Seller’s list price for such Products as of the date of shipment (the “Price”). The Buyer will pay the Price and all sales, use, value-added, and excise taxes and duties and charges imposed by a governmental authority for Products excluding taxes based on the Seller’s net income. To the extent feasible, applicable taxes shall be billed to the Buyer as a separate item. The Buyer will pay all costs of carriage of the Products to the Buyer. Except as otherwise agreed by the parties in writing, the Buyer will pay for the Products when it places a Purchase Order therefor. Payment by the Buyer shall be made in U.S. Dollars, electronically to an account designated by the Seller.
(c) The Buyer agrees to pay interest equal to the lesser of eighteen percent (18%) per annum and the maximum rate permissible under applicable law on any amount due to the Seller and not paid in accordance with these Terms and any applicable Purchase Order, from the due date for payment, until the date of payment.
2. DELIVERY, TITLE & RISK.
(a) The Seller will deliver accepted orders for the Products to a carrier for shipment in accordance with the applicable Purchase Order.
(b) Risk in the Products shall pass from the Seller to the Buyer upon delivery of the Products by the Seller to a carrier for delivery to the Buyer. Notwithstanding delivery and the passing of risk in the Products, or any other provision set forth herein, title in the Products shall not pass to the Buyer until the Seller receives in cash or cleared funds payment in full of the price of the Products in accordance with these Terms, and until all other sums due from the Buyer to the Seller have been finally paid in full.
3. WARRANTIES, INDEMNIFICATION AND LIMITATIONS OF LIABILITY.
(a) Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) its performance under these Terms will not violate any applicable law; (ii) it is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation; (iii) it has the full right, power and authority to enter into these Terms and to perform its obligations hereunder; and (iv) these Terms are legally binding upon it and enforceable in accordance with their terms.
THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PARTIES ENTER INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE RISK BETWEEN THE BUYER AND THE SELLER AND FORM A BASIS OF BARGAIN BETWEEN THE PARTIES.
4. FORCE MAJEURE. A party shall not be liable for any delay in performing its obligation in these Terms (except for such party’s payment obligations hereunder) if that delay is caused by circumstances beyond its reasonable control. The party so delayed must promptly notify the other party in writing of the reasons for the delay, and the likely duration of the delay. The performance of that party's obligations shall be suspended during the period the circumstances continue and that party shall have an extension of time for performance of its obligations equal to the period of the delay. Except where that delay is caused by the act or omission of the other party, any costs arising from such delay shall be borne by the party incurring such costs. A party delayed shall use its reasonable endeavours to overcome the circumstances causing the delay as promptly as possible.
5. RETURNS. The Buyer may cancel a Purchase Order only with the Seller’s prior written consent. Notwithstanding the foregoing, at the Buyer’s sole cost and expense, the Buyer may return the Product within thirty (30) days of delivery to the Buyer; provided that, the Product has been handled and stored in accordance with the Seller’s instructions for handling and storage and has not been used or combined with any other product. Any Product returned by the Buyer pursuant to this Section 5 shall be accompanied by a copy of the relevant Purchase Order. Upon receipt of returned Product and the relevant Purchase Order, the Seller shall refund to the Buyer any amounts paid to the Seller in connection with such returned Product. Notwithstanding the foregoing, the Seller has no obligation pursuant to this Section 5 to refund to the Buyer any amounts paid by the Buyer in connection with shipping, freight, taxes, duties or similar charges.
6. RECALL. At its sole discretion the Seller may initiate a recall of Products (a “Recall”) if: (i) such Products create a risk of personal injury or to public safety; or (ii) the Seller reasonably anticipates the Products will adversely affect the Seller and the goodwill associated with the Seller. In the event of a Recall, the
(b) Disclaimer of Warranties. EXCEPT FOR THE SELLER’S WARRANTIES SET FORTH IN THIS SECTION 3, THE SELLER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, USE OR TITLE, OR NONINFRINGEMENT. THE SELLER DOES NOT WARRANT THE PRODUCTS WILL MEET THE BUYER’S REQUIREMENTS, NOR DOES IT GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE PRODUCTS.
(c) Buyer’s Representations and Warranties. The Buyer represents and warrants that: (1) at all times, it will present the Products to potential customers, accurately, fairly and truthfully and will not make any misleading, unfair or deceptive statements about the Seller or the Products, or misrepresent any of them in any way; (2) it is qualified to do business in every location where the nature of its business activities requires such a qualification under applicable law; and (3) neither it, nor any of its affiliates, officers, directors, equity holders or employees is located in any United States of America embargoed country, or to the Buyer’s knowledge after due inquiry, is named as a “Specially Designated National” or “Blocked Person” as designated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), or is otherwise blacklisted by any instrumentality of the United States.
(d) Indemnification. The Buyer hereby agrees to defend and hold harmless the Seller and its managers, officers, members, agents, employees, and its successors and assigns (each, an “Indemnitee”) from and against any and all third party actions or claims, and to indemnify the Seller and its Indemnitees from and against any and all Losses arising from such claim, to the extent related to: (1) the Buyer’s violation of applicable law; (2) the Buyer’s breach of any representation or warranty, or of any term or condition, set forth in these Terms; and/or (3) the sale, resale, licensing, distribution or use by the Buyer or any of its customers of the Products. The Buyer shall not settle any claim without the Seller’s prior written consent, unless such settlement: (A) includes an unconditional release of the relevant Indemnitees from all liability arising out of such claim; and (B) is solely monetary in nature and does not include an admission of fault by the Seller, any injunctive or equitable relief against the Seller, or otherwise adversely affect the Seller.
(e) Limitation of Liability. In no event will the Seller be liable to the Buyer or to any other party for any indirect, incidental, consequential, remote, cover, special, punitive or exemplary damages, or damages for lost profits, arising from or related to these Terms and/or the Products, including, but not limited to, loss of revenue or anticipated profits or lost business, even if the Buyer was advised in advance of the possibility of such damages. In no event will the total cumulative liability of the Seller for any claim, loss or damage of any kind arising under these Terms or in connection with the Products, whether based on contract, tort, negligence, indemnity, or otherwise exceed the actual amount paid to the Seller under the Purchase Order giving rise to such liability. No claim may be asserted by the Buyer against the Seller more than thirty (30) days after the delivery date of the Product giving rise to such claim.
Buyer agrees to return to the Seller any Product subject to such Recall at the Seller’s sole cost and expense, and the Seller agrees to refund any amounts paid to the Seller by the Buyer in connection with such recalled Product. The Buyer agrees not to make any public statement regarding a Recall without the prior written consent of the Seller.
7. GENERAL. No failure or delay of any party to exercise any right given pursuant to these Terms or to insist on strict compliance by any other party of any obligation in these Terms shall constitute a waiver of any party's rights to demand exact compliance with the terms of these Terms. Any waiver shall be an effective waiver only if expressly set out in writing and signed by the party making such waiver. If it is held by a court that: (a) any part of these Terms is or would be void, voidable, illegal or unenforceable; or (b) the application of any part of these Terms to any person or circumstances is or will become invalid or unenforceable unless any part of these Terms were severed from these Terms; that part shall be severable and shall not affect the remaining terms of these Terms. These Terms shall be governed in accordance with the laws of the State of North Carolina, United States without reference to any conflict of law provisions. The parties further agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to the sale of goods hereunder. The Buyer is responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination. The Buyer agrees to comply with all applicable export and re-export control laws and regulations, including but not limited to United States Export Administration Regulations (EAR) administered by the Bureau of Industry and Security, U.S. Department of Commerce, trade and economic sanctions regulations administered by OFAC, U.S. Department of Treasury, and any other export authorities identified in Supplement 3 to Part 730 of the EAR. Any disputes arising out of these Terms shall be solely and finally settled by arbitration in Chapel Hill, North Carolina, United States, in accordance with the then-current “Rules of Arbitration” of the Green Coffee Association Inc. An award rendered in connection with an arbitration proceeding pursuant to this Section 7 shall be final and binding upon the parties and any judgment upon such award shall be entered and enforced in any court of competent jurisdiction.