Prices: All sales are final---Prices are U.S. currency and are subject to change without notice.
Payment Terms: 100% NET 30 due with order by Visa, MasterCard, Discover, AMEX, Wire Transfers, Company Check or Bank Check.
Checks: There is a $50.00 charge for returned NSF checks. ALL CUSTOM-MADE ITEMS ARE 100% PRE-PAID. THIS APPLIES TO MOST OF OUR PRODUCTS.
Terms: On larger orders, alternative Payment Terms may be granted at the sole discretion of POWER UP CONNECT™. A service charge of 2 % per month will be added to past due accounts.
Shipping: Charges for Shipping, Handling, Packaging and Insurance are pre-paid and added to invoice and payable by customer. F.O.B. Shipments by air or other special means can be requested. If purchaser elects to have goods shipped via their own carrier, and pays that carrier directly, the charges incurred by purchaser will be for Handling & Packaging only. POWER UP CONNECT™ will not be held responsible if your carrier damages the goods.
Back Orders: All back-ordered items will ship as soon as they are manufactured or received by POWER UP CONNECT™.
Damages/Shortages: Upon receipt of shipment, inspect ALL packages for damage or shortages. Note the problem on the bill of lading and notify the carrier immediately to initiate a customer freight claim. Claims for merchandise damaged during transport must be made directly to transport company. POWER UP CONNECT™ cannot be held responsible for products damaged during transport.
Returns: As most of our products are "custom-made" there are no returns accepted with limited exceptions. (see Warranty). No merchandise will be accepted without obtaining a return authorization from POWER UP CONNECT™. Requests for return authorization must be made within 5 business days of receipt of product. Authorized return merchandise must be unused, in resalable condition and in the items original packaging. If any of the above conditions are not met, returns will NOT be accepted. There is a 10% re-stocking charge on all returned products, excluding defective products, and the customer is responsible for all freight charges. On paid invoices a credit memo will be issued.
LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES WILL POWER UP CONNECT LLC BE HELD RESPONSIBLE FOR INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, OR COMMERCIAL LOSS HOWSOEVER CAUSED UNLESS PROHIBITED BY LAW. EXCEPT FOR
POWER UP CONNECT™ INDEMNIFICATION OBLIGATIONS HEREUNDER, POWER UP CONNECT LLC LIABILITY SHALL NOT EXCEED THE PAYMENT RECEIVED FOR THE PRODUCT SOLD BY POWER UP CONNECT™ TO THE CUSTOMER. THIS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE OR APPLICATION, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF POWER UP CONNECT™, UNLESS PROHIBITED BY LAW.
Indemnification:
POWER UP CONNECT™ shall, to the fullest extent permitted by Law, indemnify, defend upon request, and hold harmless Customer and its members, officers, directors, employees, agents, representatives, subsidiaries, affiliates, successors, and assigns (“Customer Parties”) against all losses, claims, damages, expense (including reasonable attorneys’ fees and other defense costs) and liabilities sustained or incurred by the Customer Parties for any damage, harm, loss or injury to any property or person (including death), including without limitation, claims for injuries or loss to employees of the Customer Parties, POWER UP CONNECT™ and/or any Subcontractor, to the extent arising out of any act, omission, conduct, negligence or default by POWER UP CONNECT™ Parties and/or arising out of or in any manner associated with the Purchase Order.
Insurance:
POWER UP CONNECT™ shall provide and maintain in effect (a) Commercial general liability (CGL) insurance (with coverage consistent with ISO Form CG 00 01 12 07 or its equivalent with a limit of not less than one million dollars ($1,000,000.00) per occurrence and per project or per location aggregate, covering liability for bodily injury and property damage, arising from premises, operations, independent contractors, personal injury/advertising injury, and products/completed operations for not less than three (3) years from the date Customer accepts the Products; and (b) Excess or Umbrella liability insurance coverage (including coverage for claims against Customer for injuries to POWER UP CONNECT™ personnel) with a limit of not less than four million dollars ($4,000,000.00) per occurrence and per project or per location aggregate. These limits apply in excess of each of the above mentioned policies. If any policy is written on a claims made basis, the retroactive date may not be advanced beyond the date of these Sales Terms and Conditions and coverage shall be maintained in full force and effect for three (3) years after termination of these Sales Terms and Conditions, which coverage may be in the form of tail coverage or extended reporting period coverage if agreed by the Parties. POWER UP CONNECT™ shall be responsible for any deductibles or self-insured retentions applicable to the insurance provided in compliance with Section. To the extent permitted by applicable Laws, all above-mentioned insurance policies shall:(1) Be primary and non-contributory to any other insurance carried by Customer; (2) Contain cross-liability coverage as provided under standard ISO Forms’ separation of insureds clause; (3) Provide for a waiver of all rights of subrogation which POWER UP CONNECT™’s insurance carrier might exercise against Customer; (4) Not require contribution before any Excess or Umbrella liability coverage will apply; (5) having ratings of A-/VII or better in the Best’s Key Rating Insurance Guide (latest edition in effect at the latest date stated in the Certificate of Insurance; and (6) not include any endorsement limiting coverage available to Customer which is otherwise required by this Section.All liability insurance policies shall name Customer and its Affiliates and their officers, directors, employees, agents, representatives, Affiliates, subsidiaries, successors, and assigns, as additional insureds, shall be primary to any other insurance carried by Customer, and shall provide coverage consistent with ISO Form CG 2026 (11/85), or the combination of ISO Form CG 20 10 04 13 and CG 20 37 04 13, or their equivalents, and shall maintain the required coverages (including but not limited to coverage for claims against Customer for injuries to POWER UP CONNECT™ personnel), for a period of not less than three (3) years from the date Customer accepts the Products. POWER UP CONNECT™ shall provide evidence of the required insurance coverage and file with Customer a Certificate of Insurance acceptable to Customer prior to delivery of the Products.
Intellectual Property and Infringements:
POWER UP CONNECT™ shall at its own expense defend any claim brought by others against a Customer or its successors and assigns because the sale or use of the Products infringes, or is alleged to infringe, directly or contributorily, on IP Rights or is the basis for a claim of unfair competition resulting from similarity in design, trademark, or appearance of goods by reason of the sale or use of the Products; and POWER UP CONNECT™ shall indemnify and hold the Customer harmless from any liability of any nature or kind (including advancement of all costs or expenses (including attorneys’ fees), arising out of any infringement or alleged infringement or claim of unfair competition. In addition, POWER UP CONNECT™ shall indemnify and hold the Customer harmless against, and shall pay all awards of damages assessed and all costs of suit adjudged against such Customer in such suits or proceedings, provided such Customer promptly gives POWER UP CONNECT™ such information and assistance as is readily available to such Customer, and authority as may be necessary to enable POWER UP CONNECT™ so to do. At Customer’s or such Customer’s expense (as determined between Customer and such Customer), an Customer may be represented by and actively participate through its own counsel in any such suits and proceedings if it so desires. In case any part of the Products is held in any such suit to constitute infringement, misappropriation or violation of any IP rights and its use is enjoined, or at any time after a claim of infringement arises, POWER UP CONNECT™, in addition to its indemnification obligations herein, shall (at Customer’s option), promptly either (1) secure for Customer the perpetual right to continue the use of such part of the Products by procuring for Customer a royalty-free license or such other permission as will enable POWER UP CONNECT™ to secure the suspension of any injunction, (2) replace at Power Up Connect LLC’s own expense such part of the Products with an adequate non-infringing part or modify it so that it becomes non-infringing, but only if the replacement or modification does not adversely affect Customer’s property or its operation, or (3) refund the entire Sales Price relating to the Products affected.
