| TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale ("Terms") apply to the sale by Gateway Shoes LLC ("Seller") of the products ("Products") to the buying party ("Buyer"), each of which Products and Buyer are as set forth on the sales order or invoice issued by Seller (the "Order") referencing these Terms or to which these Terms are attached. All sales by Seller are expressly conditioned upon Buyer's assent to these Terms, which assent is evidenced by Buyer taking delivery of the Products. Any additional or conflicting terms contained in any purchase order or other communications from Buyer are expressly rejected.
Unless otherwise stated in the Order, all Products will be delivered FCA (Incoterms® 2010) Seller's facility. Title and risk of loss or damage to Products will pass to Buyer upon delivery in accordance with the applicable delivery term. Unless Buyer issues other instructions prior to shipment, Seller may select any reasonable method of shipment without any liability by reason of such selection. Warranty
Seller warrants to Buyer that upon delivery the Products will meet Seller's specifications and will be free of any liens or encumbrances. NO EXPRESS WARRANTIES AND NO IMPLIED WARRANTIES, WHETHER OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE OR OTHERWISE, OTHER THAN THOSE EXPRESSLY SET FORTH ABOVE, SHALL APPLY TO PRODUCTS SOLD BY SELLER AND NO WAIVER, ALTERATION OR MODIFICATION OF THE FOREGOING CONDITIONS SHALL BE VALID UNLESS MADE IN WRITING AND SIGNED BY SELLER. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT OR WARRANTY BY SELLER OR A SUBCONTRACTOR OR SUPPLIER OR OTHERWISE, OR FROM LATE DELIVERY, SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, PERSONAL INJURY, REVENUE LOSS OR LOSS OF PROFITS OR CLAIMS OF CUSTOMERS OF BUYER FOR ANY SUCH LOSS OR DAMAGE.
Any claim under the foregoing warranty must be made in writing to Seller within 7 calendar days after receipt of the Products, and upon request, Buyer will furnish Seller with a sample of the Products claimed to be non-conforming. Seller will not be liable for any Products damaged by Buyer or a third party. Notwithstanding anything to the contrary in these Terms: (a) Seller's liability for the manufacture and sale of Products to Buyer shall not exceed the price applicable to the Products involved, and (b) as Buyer's sole remedy for any claim or dispute arising out of the Products, Seller shall, at its election, either reimburse Buyer the cost of the involved Products, including shipping expenses, or replace the involved Products. Seller cannot accept returns unless Seller has issued a Return Authorization Number. Product returned without a Return Authorization Number can be refused at Seller's discretion. Special designs and custom made items, not carried as "stock" by Seller, cannot be returned.
Buyer will pay all invoices, without deduction, in US dollars when due. Unless otherwise stated in the Order, payment is due no later than 30 calendar days from Seller's invoice date. Commencing on the day after due date, all past due amounts will bear interest at 2% per month (24% annually), or if lesser, the maximum rate permitted by Law (defined below). Seller will be entitled to set off against any amounts owed to Buyer, by any amounts owed to Seller by Buyer.
Each of the following is a default (each, a "Default"): (a) Buyer's failure to pay any amounts when due, (b) Buyer's failure to cure any other default (other than payment) within 10 calendar days after notice from Seller, or (c) the filing of a petition by or against Buyer for bankruptcy or reorganization or Buyer being generally unable to pay its debts as they become due. Upon Buyer's Default, Seller will be entitled (i) to suspend performance under these Terms or any agreement with Buyer or (ii) to cancel these Terms or any other agreement with Buyer. In addition, upon Buyer's Default, Seller will be entitled to recover any costs or expenses, including without limitation, reasonable attorney's fees, incurred in connection with Buyer's Default. Seller's rights and remedies in these Terms are cumulative and are in addition to any other rights and remedies Seller may have under law or at equity.
Seller will be excused from performance so long as any act of God, action of government, or other event not reasonably within Seller's control prevents Seller from performing its obligations. Buyer will comply with all applicable laws, statutes, rules, regulations, ordinances, orders, judgments or decrees of any governmental authority having jurisdiction ("Laws") pertaining to its obligations under these Terms or, upon delivery, in connection with the Products. Missouri law shall govern these Terms and any sale of Products by Seller to Buyer. Any litigation shall occur in the federal or Missouri state courts having jurisdiction over Stoddard County, Missouri, to the exclusion of courts of any other state or country. No course of dealing or performance or trade usage will govern the enforcement of these Terms.
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