Terms and Conditions
TERMS AND CONDITIONS OF SALE
1. General. THE SALE OF PRODUCTS (“PRODUCTS”) BY CLUTCH MASTERS IND LIMITED AND/OR ITS SUBSIDIARIES (“CLUTCH MASTERS”) TO THE BUYER (“BUYER”) IS EXPRESSLY LIMITED TO BUYER’S ACCEPTANCE OF THE TERMS OF CLUTCH MASTERS’ QUOTATION AND THE TERMS AND CONDITIONS CONTAINED HEREIN. NO MODIFICATION OR WAIVER OF ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SHALL BE EFFECTIVE UNLESS AGREED TO IN A WRITING SIGNED BY BOTH PARTIES. NO ORAL AGREEMENT, COURSE OF PERFORMANCE OR OTHER MEANS OTHER THAN SUCH WRITTEN AGREEMENT SIGNED BY BOTH PARTIES EXPRESSLY PROVIDING FOR SUCH WAIVER SHALL BE DEEMED TO WAIVE ANY THE TERMS OF THIS AGREEMENT. BUYER’S ACCEPTANCE OF THE PRODUCTS SOLD HEREUNDER SHALL CONSTITUTE BUYER’S ACCEPTANCE OF THE TERMS HEREOF.
2. Prices and Taxes. All prices are subject to the shipping terms defined in Section 4 below. The prices are exclusive of any applicable Federal, State, Provincial or local taxes or assessments, which taxes and assessments will be paid by Buyer. All prices are subject to adjustment, at any time, by Clutch Masters. Clutch Masters seeks to ensure that prices stated on its website are accurate, however errors do occur from time to time. Where a pricing error occurs (subject to applicable law that cannot be excluded), Clutch Masters will not be bound by the incorrect pricing stated and reserves the right to cancel any purchase including incorrect pricing.
3. Cancellations and Changes. No cancellations of or changes to the Products ordered by Buyer shall be effective without Clutch Masters' written consent. Without such consent, a cancellation of or change to the Products ordered by Buyer shall entitle Clutch Masters to all remedies available by law or equity including, but not limited to, cancellation costs or increased prices. Products may not be returned without obtaining written authorization and shipping instructions from an authorized representative of Clutch Masters. Clutch Masters reserves the right to cancel orders for any reason or to cancel the purchase agreement after order confirmation, including (without limitation) where Clutch Masters believes the order to be fraudulent or constitute a mis-use of a promotional or marketing activity or where an error has occurred including but not limited to errors relating to pricing. If Clutch Masters cancels Buyer’s order or purchase agreement, Clutch Masters accepts no liability for any resulting damages or costs suffered by Buyer; however Clutch Masters will refund the purchase price to Buyer (where it has already been paid).
4. Shipment and Delivery. All delivery dates are estimates only. Clutch Masters' only obligation with respect to delivery dates shall be to use reasonable efforts to meet same. Delivery dates will be reasonably extended if Buyer does not timely deliver any materials, documentation, approvals, examinations and clearances that are required to be provided by Buyer. Delivery terms shall, unless otherwise specified in Clutch Masters’ quotation, be as follows: (a) domestic shipping (i.e. shipments are from a U.S. location to a U.S. location), will be: FOB (as commonly understood in international freight movement) the designated Clutch Masters facility; and (b) all other shipping will be FCA (as defined in Incoterms 2010) at the designated Clutch Masters facility. Title and risk of loss to the Products shall transfer upon completion of delivery of the Products per the applicable delivery term. Clutch Masters will not be liable for any delays, breakage, loss or damage after having made delivery in accordance with the applicable delivery term. Except as otherwise agreed, all claims for loss or damage in transit are to be made by Buyer directly to the transportation carrier and the appropriate insurance carrier retained by Buyer. No deductions of any kind from the invoice amount shall be made. Unless otherwise specified in Clutch Masters’ quotation, standard packing for domestic shipment is included in the quoted price. When special domestic or export packing is requested, Buyer will be charged for any additional expenses. Shipments shall be deemed accepted by Buyer unless written notice of rejection is received by Clutch Masters within ten (10) days after receipt of the Products by Buyer.
5. Force Majeure. In the event either party is unable to fully perform its obligations hereunder (except for Buyer's obligation to pay for Products ordered) due to events beyond its reasonable control including but not limited to acts of God, action by any governmental authority (whether valid or invalid), fire, flood, windstorm, explosion, riot, natural disaster, pandemic, war, sabotage, labour problems (including lockouts, strikes, slowdowns), inability to obtain power, material, labour, equipment or transportation, or court injunction or order, that party shall be relieved of its obligations to the extent it is unable to perform without liability to the other party. Timely notice of such inability to perform shall be given to the other party.
6. Payment Terms. Unless otherwise specified, payment for Products will be made in advance of shipment by direct credit card payment, or Affirm.
7. Stock Availability. In order to provide the greatest range of products, Clutch Masters does not stock all Products listed on its website in a single warehouse. All items sold via the Clutch Masters website are subject to availability and Clutch Masters reserves the right not to accept or cancel any order for Products that are out of stock. Product availability information is provided by a number of third-party suppliers. Clutch Masters works with these third parties to ensure this information is as accurate as possible; however some errors and omissions are expected. Goods delivered may differ from the Product images presented on the Company website.
8. Warranty.
8.1 Clutch Masters warrants that the Products will conform to the applicable specifications and will be free of defects in design (to the extent that Clutch Masters furnishes the design), material and workmanship, subject to the terms and conditions and for the warranty period stated in Clutch Masters’ standard limited warranty for each Product.
8.3 THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLUTCH MASTERS ASSUMES NO LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. THE REMEDIES SET FORTH IN THIS SECTION 8 REPRESENT BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY CLUTCH MASTERS BREACH OF WARRANTY. IN NO EVENT SHALL CLUTCH MASTERS'S MAXIMUM LIABILITY TO BUYER EXCEED THE AMOUNT RECEIVED BY CLUTCH MASTERS PURSUANT TO THE ORDER.
9. Buyer Indemnity. Buyer shall indemnify Clutch Masters against any loss of or damage to property, or for data or software which is lost, corrupted, deleted or altered due to the act or omission of Buyer.
10. Patents/Trademarks. Clutch Masters warrants that the Products shall be delivered free of rightful claims for infringement of any patent or trademark, provided, however, that this warranty shall not apply to claims for patent infringement to the extent that any Products are (a) manufactured to Buyer's specifications, (b) used in combination with Products not purchased from Clutch Masters in a manner which infringes a patent covering the combination, or (c) used in a manner not reasonably anticipated by Clutch Masters. Clutch Masters' obligation hereunder is conditioned upon Buyer: (i) giving Clutch Masters prompt written notice of any infringement claim; (ii) cooperating fully with respect to the defense of such claim; and (iii) upon Clutch Masters' request, providing Clutch Masters full control of the defense including settlement and/or litigation of such claim. Clutch Masters shall be entitled, at its option, to obtain a license on Buyer's behalf for the Product which (allegedly) infringes an intellectual property right or to modify the Product in such a way that it does not infringe the intellectual property right, or replace the Product by a similar product which does not infringe the intellectual property right. This Section 10 constitutes the entire liability of Clutch Masters and sole and exclusive remedy of Buyer for claims for intellectual property infringement relating to the Products.
11. Goods for Export. Buyer agrees to comply with all applicable laws, regulations or orders, including, if applicable all requirements of the International Traffic in Arms and/or the Export Administration Act, as may be amended. If the ultimate destination of the Products is outside of Buyer’s documented place of business, Buyer shall designate such country on its order. In the event that Buyer purchases Products for export without notifying Clutch Masters, Buyer shall have sole liability and shall defend and indemnify Clutch Masters for any loss or damage (including, without limitation, claims of governmental authorities) arising from the export from the Buyer’s documented place of business or import into another country of such Products.
12. Remedies/Limitation of Remedies. Clutch Masters' rights and remedies set forth herein shall be in addition to any legal or equitable right or remedy available to Clutch Masters. Clutch Masters’ failure to insist on the performance by Buyer of any term or failure to exercise any right or remedy, or Clutch Masters’ waiver of any breach or default hereunder by Buyer shall not, thereafter, waive any other terms, conditions, rights, remedies, breaches or defaults, whether of the same or as similar type or not. No waiver of any of Clutch Masters' rights or remedies shall be effective without Clutch Masters' express written consent. Clutch Masters shall not be liable for any incidental, consequential, special or punitive damages arising from the sale or use of any Products or Clutch Masters' performance or failure to perform any of its obligations hereunder or any order or other agreement, whether the claims be in contract or tort, including negligence or strict liability. Buyer's sole and exclusive remedy after acceptance of the Products shall be the remedy available under the warranty provision.
13. Assignment. Buyer may not assign his or its rights hereunder in whole or in part without Clutch Masters’ prior written consent.
14. Confidentiality. Buyer shall treat all details, specifications or information it may receive relating to Clutch Masters, its products, patents, formulations, intellectual property, business or affairs as confidential, and shall not disclose the same to any third party, or use such information, without the prior written consent of Clutch Masters.
15. Severability. These Terms and Conditions shall not be construed against the party preparing them but shall be construed as if both parties jointly prepared them, and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the Terms and Conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance from these Terms and Conditions.
16. Set-Off. Buyer shall not be entitled to set-off any amounts due Buyer against any amount due Clutch Masters in connection with this transaction.
17. Applicable Law; Arbitration. This Agreement and all disputes between the parties arising out of or related to this Agreement shall be interpreted in accordance with and governed by the laws of California, and the California Courts will have non-exclusive jurisdiction in respect of all matters except for its choice of law rules; the United Nations Convention on the International Sale of Goods shall not apply.
