Terms of Sale

Porter Designs Terms of Sale 

These Terms of Sale (“ToS”) apply to orders by direct purchasers (“Purchaser) and Resellers  (collectively, “Customer”), unless Customer and Porter Designs (as defined below) have entered into a separate written agreement that applies to Customer’s orders for specific products. 

The Terms of Sale below apply to Porter Designs Inc. and to Affiliates who provide products pursuant to the ToS, unless stated otherwise. 

  

1. DEFINITIONS
2. “Affiliate” means direct or indirect subsidiaries of Porter Designs Inc.
3. “Delivery” for Products is in accordance with the terms agreed to at the time of shipment as indicated on the Order.
4. “Products” means goods that Porter Designs provides to Customer under the ToS.  Porter Designs Products exclude Third Party Branded Products.
5. “Providers” means entities (other than Customer) whose components, have been incorporated into Products.
6. “Reseller” means a Customer that makes goods that Porter Designs provided under the ToS available for sale.
7. “Third Party Branded Products” means goods that are not Porter Designs branded. Third Party Branded Products may include, without limitation, products manufactured, created, or licensed on behalf of Porter Designs or its Affiliates.

  

2. BUYING PRODUCTS
3. Quotes.  “Quote” means a communication between the parties to facilitate discussion of a potential transaction.  A Quote is not an Order as defined by these ToS and is not binding on either party.
4. Orders. “Order” means Customer’s order of Products, through either Porter Designs website or other process (phone, email, fax, etc.), Customer purchase orders, and Porter Designs order forms executed by Customer. Orders are subject to credit approval and to acceptance by Porter Designs. Acceptance of one Order is independent from any other Order. Orders may contain charges for shipping and handling.  
5. Resellers.  To the extent that we make Products available for resale, Resellers may order such Products for resale by indicating such following the directions set forth on the Porter Designs website or otherwise provided by Porter Designs.
6. Product Revision. Porter Designs may revise Products and Third Party Branded Products at any time, including after Customer places an Order, but prior to Porter Designs’ shipment. As a result, Products Customer receives may differ from those ordered. However, Porter Designs Products will materially meet or exceed all published specifications for the Products.
7. Cancelation and Acceptance. Customer may not cancel Orders except as provided herein. Orders for Third-Party Products are subject to availability and are cancellable only by Porter Designs. All Product is deemed accepted by Customer upon Delivery.
8. Risk of Loss; Title. Risk of loss and Title for sold Products pass to Customer in accordance with the terms agreed to at the time of shipment as indicated on the Order. Unless otherwise agreed, Porter Designs will choose the common carrier. Customer must notify Porter Designs within thirty days of the invoice date if Customer believes any part of its Order is missing, wrong, or damaged. Porter Designs is not liable for any damage or loss to the product when non-Porter Designs provided shipping method is used for shipping from Porter Designs to the customer. Customer must work with their designated carrier for reimbursement. Customer is responsible for inspecting the package(s) upon delivery and must note any visible damage on the proof of delivery (POD) or other delivery receipt you may be requested to sign. Porter Designs will not be responsible for any visible shipping damages not noted on the delivery receipt.
9. G. Payment. Customer must pay Porter Designs’ invoices in full in US dollars within the timeframe noted on Porter Designs’ invoice, with interest accruing after the due date at the lesser of 1.5% per month or the highest lawful rate. Porter Designs may invoice parts of an Order separately or together in one invoice. All invoices will be deemed accurate unless Customer advises Porter Designs in writing of a material error within ten days following receipt. If Customer advises Porter Designs of a material error, (i) any amounts corrected by Porter Designs in writing must be paid within the terms stated on the invoice, and (ii) all other amounts shall be paid by Customer by the due date. If Customer withholds payment because Customer believes an invoiced amount is incorrect, and Porter Designs concludes that the amount is accurate, Customer must pay interest as described below from the due date for the amount until Porter Designs’ receipt of payment. Customer may not offset, defer or deduct any invoiced amounts that Porter Designs determines are correct following the notification process stated Porter Designs, without waiving any other rights or remedies and without liability to Customer, may suspend any or all Services until all overdue amounts are paid in full.  If Customer chooses to pay an invoice after the time noted on Porter Designs’ invoice with a credit card, Porter Designs will impose a convenience fee of 2.4% on the transaction amount, which is not greater than our cost of acceptance. We do not impose a surcharge on debit cards or where prohibited by law.
10. Taxes. Customer is responsible for payment of any sales, use, value added, GST, and any other similar taxes or governmental fees associated with Customer’s Order, except for taxes based on Porter Designs’ net income, gross revenue, or employment obligations. Customer must also pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). If Porter Designs is obligated by applicable law to collect and remit any taxes or fees, then Porter Designs will add the appropriate amount to Customer’s invoices as a separate amount. If Customer qualifies for a tax exemption, Customer must provide Porter Designs with a valid certificate of exemption or other appropriate proof of exemption.
11. Third Party Branded Products. Customer may purchase Third Party Branded Products through Porter Designs. The terms governing Customer’s use of Third Party Branded Products are as follows: (i) The Third Party manufacturer’s standard terms, including warranty, indemnification, and support terms and conditions, apply; and (ii) Porter Designs has no liability to Customer for any damages that arise out of or relate to Third Party Branded Products. Porter Designs provides Third Party Branded Products “AS IS”, make no express warranties, and disclaim all implied warranties, including merchantability, fitness for a particular purpose, title, and non-infringement as well as any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade.

  

3. RESELLERS

A.  Special Terms for Resellers.  Subject to these TOS, Resellers are permitted to identify themselves as a Porter Designs "Reseller" solely in connection with their resales of Products.  Except as otherwise stated herein, Reseller agrees to not use the Porter Designs trademark, logo or service marks ("Porter Designs Marks") or copyrighted materials without Porter Designs’ prior written permission. Reseller agrees to not alter or modify the Porter Designs Marks, use the Porter Designs Marks in connection with product that does not originate with Porter Designs or use the Porter Designs Marks in a confusing way that suggests that Porter Designs sponsors or endorses Reseller or Reseller’s products or services, or confuses the Porter Designs brand with another brand.  Porter Designs Resellers may use the Porter Designs wordmarks in any written, photo or video content to refer to Porter Designs branded products and may display in photos or videos genuine Porter Designs branded products in the same bearing the Porter Designs Marks. All goodwill arising from Reseller’s use of Porter Designs Marks inures to the benefit of Porter Designs. 

1. Pricing and Payment; Refunds. Reseller will independently set its own pricing to each of their customers.  Notwithstanding the forgoing, Reseller agrees to comply with the Porter Designs Internet Minimum Advertised Pricing Policy and further agrees to execute any documentation provided by Porter Designs to evidence agreement to this policy.  Reseller agrees to bear all risk of non-payment by their customers and is solely responsible for all costs and expenses. Reseller may not terminate a Reseller Order or receive any refunds due to non-payment by their customers. Porter Designs will not provide any refund to their customers under our standard return policy. Porter Designs will refund the applicable amounts to Reseller for distribution to their customers. Reseller agrees to cooperate with Porter Designs in connection with any such refund.
2. Business Practices. Reseller agrees not to represent itself as an agent or employee of Porter Designs.  Reseller will not make any representations regarding Porter Designs, on Porter Designs’ behalf, or about any Products. Reseller will not engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Porter Designs or its products and agree to comply with all applicable federal, state and local laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act and any similar laws or regulations in any applicable jurisdiction. Reseller further agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users.

  

4. TERM; TERMINATION OR SUSPENSION
5. Term. This ToS is effective upon the earlier of Customer’s issuance of an Order to Porter Designs, or Customer’s acceptance of the ToS. The ToS continues until it is terminated in accordance with this Section.
6. Termination. Either party may terminate the ToS: (i) for a material breach by the other party that is not cured within thirty days of the breaching party’s receipt of written notice of the breach; or (ii) if a party declares bankruptcy or is adjudicated bankrupt or a receiver or trustee is appointed for substantially all of its assets. In addition, Porter Designs may terminate the ToS with ten days’ written notice if: (a) Customer does not make payment as required by the ToS (where the payment is not subject to a good faith dispute); or (b) Customer fails to make the payment within ten days after receiving written notice of the past due amount.
7. Survival. The provisions relating to payment of outstanding fees, records and audit, confidentiality, and liability will survive termination, all rights of action accruing prior to termination, along with any other provision of the ToS that, expressly, or by its nature and context, is intended to survive.

  

5. INDEMNITY

Customer will defend and indemnify Porter Designs and Affiliates against any third party claim resulting or arising from Customer’s: (i) violation of Porter Designs’ or Affiliates’ proprietary rights; or (iii) misrepresentation of facts regarding an export license or any allegation made against any Porter Designs or Affiliates due to Customer’s violation or alleged violation of applicable export laws. 

  

6. LIMITATION OF LIABILITY
7. Limitations on Damages. The limitations, exclusions and disclaimers stated below apply to all Disputes (as defined in Section 8F (“Governing Law; Informal Dispute Resolution; Attorney’s Fees”). The terms of this Section are agreed allocations of risk constituting part of the consideration for Porter Designs’ and Affiliates’ sale of products  to Customer and will apply even if there is a failure of the essential purpose of any limited remedy, and regardless whether a party has been advised of the possibility of the liabilities.
8. (1). Limitation on Direct Damages. Except for Customer’s obligations to pay for products , Customer’s violation of the restrictions on use of products  or Porter Designs’ intellectual property rights, Customer’s indemnity obligation stated in Section 5 (“Indemnity”), each party’s total liability for Disputes is limited to the amount Customer paid to Porter Designs for the Order from which  the Dispute arose, but excluding amounts received as reimbursement of expenses or payment of taxes.
9. (2). No Indirect Damages. Except for Customer’s payment obligations and violation of Porter Designs’ intellectual property rights, neither Porter Designs nor Customer has liability to the other for special, consequential, exemplary, punitive, incidental, or indirect damages, or for lost profits, loss of revenue, loss of data, or loss of use, or procurement of substitute products .
10. Limitation Period. Except as stated in this Section 6C, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within eighteen months after the cause of action accrues.
11. Warranty. Any warranty does not cover problems that arise from: (i) accident or neglect by Customer or any third party; (ii) any third party items with which the Product is used or other causes beyond Porter Designs’ control; (iii) installation, operation, or use not in accordance with Porter Designs’ instructions or applicable documentation; (iv) use in an environment, in a manner, or for a purpose for which the Product was not designed; (v) modification, alteration, or repair by anyone other than Porter Designs or its authorized representatives; or (vi) causes attributable to normal wear and tear.  Other than the warranties set forth in these TOS, and to the maximum extent permitted by applicable law, Porter Designs and Affiliates, and their Providers: (i) make no other express warranties; (ii) disclaim all implied warranties, including merchantability, fitness for a particular purpose, title, and non-infringement; and (iii) disclaim any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade.

  

7. CONFIDENTIALITY. “Confidential Information” is any information, technical data, or know-how furnished, whether in written, oral, electronic, website-based, or other form, by the discloser to the recipient that: (i) is marked, accompanied, or supported by documents clearly and conspicuously designating the documents as "confidential", “internal use”, or the equivalent; (ii) is identified by the discloser as confidential before, during, or promptly after the presentation or communication; or (iii) should reasonably be known by recipient to be confidential. This ToS imposes no obligation upon a recipient with respect to information designated as confidential which: (a) the recipient can demonstrate was already in its possession before receipt from the discloser; (b) is or becomes publicly available through no fault of the recipient or its Representatives (defined below); (c) is rightfully received by the recipient from a third party who has no duty of confidentiality; (d) is disclosed by the discloser to a third party without a duty of confidentiality on the third party; or (e) is independently developed by the recipient without a breach of the ToS. If a recipient is required by a government body or court of law to disclose Confidential Information, to the extent permitted by law, the recipient agrees to give the discloser reasonable advance notice so that the discloser may contest the disclosure or seek a protective order. Recipient will use Confidential Information only for the purpose of and in connection with the evaluation of a potential, or continuation of, a business transaction or relationship between the parties. Recipient may disclose Confidential Information to its directors, officers, employees, and employees of its affiliates, as well as its and its affiliates’ contractors, advisors, and agents, so long as those individuals have a need to know in their work for recipient in furtherance of the potential or continued business transaction or relationship, and are bound by obligations of confidentiality at least as restrictive as those imposed on recipient in this ToS (collectively, “Representatives”). Recipient is fully liable for any breach of this ToS by its Representatives. Recipient will use the same degree of care, but no less than reasonable care, as the recipient uses with respect to its own similar information to protect the Confidential Information. Recipient may only disclose Confidential Information as authorized by this ToS. The terms of this ToS do not restrict the right of recipient to independently design, develop, acquire, market, service, or otherwise deal in, directly or indirectly, products  competitive with those of the discloser so long as the recipient does not use any of the discloser's Confidential Information for those activities. Unless the parties otherwise agree in writing, a recipient's duty to protect Confidential Information expires three years from the date of disclosure. However, subject to the terms of this Section, the obligation to protect technical information about a discloser’s current products  and all information about possible unreleased products  never expires. Upon the discloser's written request, recipient will promptly return or destroy all Confidential Information received from the discloser, together with all copies. Notwithstanding the foregoing, recipient’s professional advisors (e.g., lawyers and accountants) may retain in confidence one file copy of their respective work papers and final reports in accordance with their professional and ethical obligations.

  

8. MISCELLANEOUS
9. Notices. The parties will provide all notices under this ToS in writing. Customer must provide notices to Porter Designs, at cs@porterdesignsusa.com.
10. Excused Performance. Except for payment of amounts due and owing, neither Porter Designs nor Customer will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that party’s reasonable control.
11. Assignment. Customer may not assign the ToS, or an Order, or any right or obligation under the ToS, or an Order, or delegate any performance, without Porter Designs’ prior written consent, which will not be unreasonably withheld. Even if Porter Designs consents to an assignment or delegation, Customer remains responsible for all obligations to Porter Designs under the ToS, or Order that Customer incurred prior to the effective date of the assignment or delegation. Customer attempts to assign or delegate without Porter Designs’ prior, written consent are void.
12. Governing Law; Informal Dispute Resolution; Attorney’s Fees. The ToS, and any dispute, claim, or controversy (whether in contract, tort, or otherwise) related to or arising out of the ToS or any Order (“Dispute”) is governed by the laws of the State of Oregon (excluding the conflicts of law rules) and the federal laws of the United States. The U.N. Convention on Contracts for the International Sale of Goods does not apply. To the extent permitted by law, the state and federal courts located in Texas will have exclusive jurisdiction for any Disputes. Customer and Porter Designs agree to submit to the personal jurisdiction of the state and federal courts located within Portland, Oregon and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute. Neither Customer nor Porter Designs are entitled to join or consolidate claims by or against other customers, or pursue any claim as a representative or class action, or in private attorney general capacity. As a condition precedent to filing any lawsuit, the parties will attempt to resolve any Dispute against one or more Porter Designs or any Porter Designs Affiliate through negotiation with persons fully authorized to resolve the Dispute, or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Although the merits of the underlying Dispute will be resolved in accordance with this Section, any party has the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitation periods, or preserve a superior position with respect to other creditors. If the parties are unable to resolve the Dispute within thirty days (or other mutually agreed time) of notice of the Dispute to the other party, the parties will be free to pursue all remedies available at law or in equity. In any Dispute (other than Porter Designs’ efforts to collect overdue amounts from Customer) each party will bear its own attorneys’ fees and costs and expressly waives any statutory right to attorneys’ fees under § 38.001 of the Texas Civil Practices and Remedies Code.
13. Waiver. Failure to enforce a provision of the ToS will not constitute a waiver of that or any other provision of the ToS.
14. Independent Contractors. The parties are independent contractors for all purposes under the ToS and cannot obligate any other party without prior written approval. The parties do not intend anything in the ToS to allow any party to act as an agent or representative of a party, or the parties to act as joint venturers or partners for any purpose. No party is responsible for the acts or omissions of any other.
15. Severability. If any part of the ToS or document that incorporates the ToS by reference is held unenforceable, the validity of all remaining parts will not be affected.
16. Privacy Statements. For information about Porter Designs’ Privacy Statements, please read Porter Designs’  privacy policy at www.PorterDesignsUsa.com/privacy These policies explain how Porter Designs treats Customer personal information and protects Customer privacy.
17. Trade Compliance. Customer is subject to and responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions. Materials may not be used, sold, leased, exported, imported, re-exported, or transferred except with Porter Designs’ prior written authorization and in compliance with such laws, including, without limitation, export licensing requirements, end user, end-use, and end-destination restrictions, prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List, or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory (including without limitation, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of, economic sanctions of the United States or other applicable jurisdictions.
18. Entire Agreement; Conflicts. The ToS, and, if Customer is directly purchasing from Porter Designs, the Porter Designs’ Order: (i) comprises the complete statement of the agreement of the parties with regard to its subject matter; and (ii) may be modified only in a writing signed by Customer and Porter Designs.  All terms of any Customer Order, including but not limited to (1) any terms that are inconsistent or conflict with this ToS, , and (2) any pre-printed terms, have no legal effect and do not modify or supplement the ToS, even if Porter Designs does not expressly object to those terms when accepting a Customer Order. No party is relying upon the representations of statements of the other that are not fully expressed in this ToS, and each party expressly disclaims reliance upon any representations or statements not expressly set forth in this ToS. Any claims by any party of fraud in the inducement of this ToS or any Customer Order based on any statements, representations, understandings, or omissions, whether oral or written, that are not fully expressed in this ToS are expressly waived and released.
19. Future Changes to this Agreement.  From time to time, we may modify these TOS. The version of the TOS in place at the time you submit each Customer Order is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication.