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General Terms & Conditions of Sale
Orders from Oh that Glow goods (the “Goods”) are subject to the following terms and conditions of sale. These terms and conditions of sale shall govern the sale of Goods from Oh that Glow to you and/or the company you are authorized to represent (“you”). Our (OTG-Oh that Glow) performance is expressly made conditional upon your agreement to these terms and conditions of sale. Any provisions or conditions of any purchase order or other document, which are inconsistent with or in addition to these terms and conditions, are hereby rejected and shall be inapplicable and not binding upon Oh that Glow.
1. Warranties, Disclaimer, Limitations on Liability. Oh that Glow warrants only that the Goods shall be free from material defects on the delivery date, provided, you store and handle the delivered Goods in such a manner that meets or exceeds the storage and handling procedures utilized by Oh that Glow .
You must provide Oh that Glow with written notice of any warranty claims no later than thirty (14) days after receipt of the applicable order of Goods. Failure to provide written notice within such 14-day period shall void Oh that Glow’s warranties in their entirety. As Oh that Glow’s sole responsibility and liability, and YOUR ONLY AND EXCLUSIVE REMEDY for any breach or breaches of such warranties, WSW shall, upon written notice from you, either (OTG option) replace the defective portion of the Goods, or accept return thereof and refund the price paid by you for the defective portion. Any misuse, improper handling, storage, use, modification or alteration of the Goods by any third party shall void the forgoing warranty. You shall remain entirely responsible for any shipments by you or your company for purposes of returning defective products or packages here under to Oh that Glow, and all risk of loss or damage during shipment shall be borne by you. Oh that Glow will pay (or reimburse you) for reasonable shipping and handling charges limited to valid warranty claims.
You agree and acknowledge that any benefits derived from use or resale of the Goods will depend on factors which vary from business to business and which are not within Oh that Glow’s control. YOU ARE RESPONSIBLE FOR THE SELECTION OF THE GOODS TO MEET YOUR, YOUR COMPANY’S OR ITS CUSTOMERS’ NEEDS, AND Oh that Glow MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OR SALE OF THE GOODS IN YOUR BUSINESS. THE WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES MADE BY Oh that Glow. Oh that Glow EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE AND ANY IMPLIED INDEMNITIES.
IN NO EVENT WILL Oh that Glow BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT, OR THE USE OR SALE OF GOODS BY YOU, OR ANY OTHER PARTY, OR FROM THE MANUFACTURER, SALE OR USE OF ANYTHING MADE BASED ON THE GOODS, EVEN IF Oh that Glow IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR INJURIES TO CONSUMERS DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF Oh that Glow. You agree that, regardless of the form of action, whether in contract or tort, including negligence, Oh that Glow’s liability for damages claimed by you with respect to the Goods shall not exceed fees received by Oh that Glow from you for the applicable Goods here under. Regardless of the form of action, whether in contract or tort, including negligence, Oh that Glow’s liability for damages claimed by third parties with respect to the Goods, as between Oh that Glow and you shall not exceed fees paid to Oh that Glow here under. No action, regardless of form, arising under this Agreement (other than an action for non-payment of any purchase prices or other amounts owed by you to Oh that Glow), may be brought by either party more than one (1) year after the date of the alleged breach. Oh that Glow shall not be liable for any failure to perform under this Agreement where such failure is due to any cause beyond Oh that Glow’s control.
You hereby release and shall defend and hold Oh that Glow and its owners and agents harmless from and against any actual or threatened claims, losses, liabilities (including without limitation any punitive damages and fines), costs and expenses (including without limitation reasonable costs of litigation and attorneys’ fees) related to third party actions (a) in which it is determined that Oh that Glow is not at fault; and/or (b) arising from or relating to any acts or omissions by you, your company or your customers.
2. General. Our relationship is one of independent contractors. No agency, employment, partnership or joint venture shall be created by or founded upon this Agreement. You shall not make or assign, or represent to any party, by implication or otherwise, that it may make or assign, any warranty or representation by or for Oh that Glow, nor shall you attempt, or represent that it is entitled, to make any commitment, waiver or settlement on behalf of Oh that Glow or to pledge the credit of Oh that Glow . This Agreement shall be governed by and construed under the laws of the State of Florida, without regard to any conflicts of law principles to the contrary. You agree not to object to this jurisdiction and venue, and hereby waive all defenses of lack of personal jurisdiction and forum non-convenes. Any notice or request here under shall be made in writing delivered in person to an authorized officer of the respective party or mailed or transmitted by cable or fax copier, for Oh that Glow, to the current contact information on our website at www.ohthatglow.com, and, for you, to the address Oh that Glow has on file for you in your most recent approved application (unless changed by written notice of a different address). Your rights here under are personal to you and the company you represent, and may not be assigned or transferred in whole or in part by you, nor may any benefit here under inure to any trustee in bankruptcy, receiver, or successor, whether by operation of law or otherwise, without the prior written consent of Oh that Glow, and any attempted assignment or transfer without such consent shall constitute a breach here under and shall be void. No omission or delay on the part of either party hereto in requiring due and punctual fulfillment of the obligations of the other party shall be deemed to constitute a waiver of any of the rights of the omitting or delaying party unless such rights are waived in the particular instance in a writing delivered to the other party, and no such waiver shall apply to any other instance or obligation. If any provision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the maximum extent allowed by law and the parties’ fundamental intentions in that and other contexts, and the remainder of this Agreement shall not be affected thereby.