TERMS AND CONDITIONS APPLICABLE TO PURCHASE ORDERS ISSUED BY
1) Except to the extent set forth to the contrary in any written agreement that is in full force and effect and duly executed by Vendor and Purple Wine Company, LLC, DBA Purple Wines (“WINERY”), this purchase order (“Purchase Order”) and these Terms and Conditions govern all purchases of goods and/or services (“Products”) from Vendor by WINERY. Vendor’s commencement of performance of the services or delivery of goods subject to the Purchase Order constitutes agreement to these Terms and Conditions. WINERY does not agree to, and is not bound by, any other terms or conditions stated anywhere by Vendor — whether in a quote, invoice, or other document — unless expressly agreed to in a writing duly executed by an authorized representative of WINERY. No conduct or oral comment by WINERY constitutes consent to or acceptance of any such provisions.
2) Except to the extent set forth to the contrary in the Purchase Order, Payment terms are net forty-five (45) days after the later of receipt of Vendor’s invoice or final acceptance of the Products by WINERY. Delivery will not be deemed to be complete until Products have been actually received and accepted by WINERY. Payment shall not constitute final acceptance. Title to and risk of loss will remain with Vendor until the Products have been delivered to and accepted by WINERY.
3) Vendor represents that it has the full power and authority to accept this Purchase Order Vendor represents and warrants that all Products provided hereunder will: (i) conform with the specifications or samples furnished or accepted by WINERY; (ii) be merchantable; (iii) be free from defects in design, materials and workmanship; (iv) be free and clear of all claims, liens and encumbrances of any kind; and (v) be fit for the purpose intended, Vendor having knowledge of the particular purpose for which the Products are required and WINERY relying on Vendor’s skill or judgment to select and provide suitable goods and services. The remedy for defective services or goods shall be, at WINERY’s option and in addition to any other rights WINERY may have: in the cases of services, re-performance by Vendor of the defective services or full refund by Vendor; in the case of goods, repair or replacement by Vendor (with all packing and transportation charges at Vendor’s expense) of the defective goods or full refund by the Vendor. Failure by Vendor to timely remedy any defective Products shall permit WINERY to repair or replace the defect at Vendor’s expense. These warranties shall be in addition to any warranties expressly made by Vendor or provided by law and shall survive any inspection, delivery, acceptance or payment for all or part of the Products. WINERY may, by written notice to Vendor, cancel all or any part of this Purchase Order without liability and exercise any other remedy provided by law or in equity in the event of Vendor’s breach or failure to fulfill any of its obligations under these Terms and Conditions. In the event of such cancellation, WINERY may procure, upon such terms and in such manner as WINERY may deem appropriate, goods and services similar to those cancelled, and Vendor shall be liable to WINERY for any excess costs for such similar goods and services. WINERY may cancel all or any part of this Purchase Order by written notice to Vendor, and Vendor shall stop work immediately on the terminated portion of this Purchase Order Upon termination of this Purchase Order for any reason other than default by Vendor, WINERY shall reimburse Vendor for Vendor’s reasonable and necessary expenditures up to the date of termination, but shall not be responsible for any profits on the portion cancelled.
4) To the fullest extent permitted by law, Vendor will defend, indemnify and hold harmless WINERY, its affiliates and their respective managers, members, officers, directors, employees, agents, successors and assigns harmless from and against all judgments, fines, settlement amounts, damages, claims, costs, expenses (including attorneys’ fees) and liabilities of every kind and nature in any manner directly or indirectly caused by, arising out of or related to (i) the alleged performance or non-performance or breach or threatened breach of Vendor’s obligations, representations and warranties hereunder, or of any applicable law, rule or regulation; or (ii) any act or omission by Vendor or any of Vendor’s employees, agents, subcontractors, successors and assigns, except to the extent caused by the gross negligence or willful misconduct of WINERY or its employees or agents.
5) Any failure by WINERY to exercise any of its rights or obligations under these Terms and Conditions shall not be construed as a waiver of such rights, and such failure shall not preclude exercise of such rights at any later time.
6) Vendor may not assign any of its rights or obligations under these Terms and Conditions, whether by operation of law or change of control or otherwise, without the prior written consent of WINERY.
California law governs these Terms and Conditions. Any dispute related to anything referred to in these Terms and Conditions shall be resolved by arbitration in San Francisco, California under the Comprehensive Rules and Procedures of JAMS, or its successor then in effect. The decision of the arbitrator shall be final and binding on the parties. The arbitrator shall render a reasoned award and is empowered to award compensatory damages only. The parties consent to the jurisdiction of the State and Federal Courts in San Francisco, California, where any judicial action regarding any aspect of the parties’ relationship shall be filed, including, without limitation, any action to compel arbitration, or to confirm, modify or enforce the arbitral award. If any portion of this Purchase Order of these Terms and Conditions is determined to be invalid or unenforceable by an arbitrator or court of competent jurisdiction, then such portion shall be deemed severed to the extent of the invalidity or unenforceability, and the remainder of these Terms and Conditions or the Purchase Order shall remain in full force and effect. These Terms and Conditions may be modified only in writing pursuant to a document duly executed by an authorized representative of WINERY. In the event of any legal proceeding to enforce this Purchase Order or these Terms and Conditions, the prevailing party shall be entitled to receive from the other party reasonable attorneys’ fees, expert fees, costs and other expenses of the proceeding.