These Terms and Conditions (these “Terms and Conditions”) govern the purchase and sale of products and services (collectively, the “Products”) on the Driven Advantage platform (the “Platform”) by Driven Product Sourcing LLC (“DPS”) and certain other authorized sellers (each a “Seller” and collectively, the “Sellers”) to all customers, distributors, end users, and other purchasers (each a “Buyer” and, collectively, the “Buyers”). These Terms and Conditions, together with any related quote, proposal, invoice, order acknowledgment, purchase order, sales order, or other Seller terms, whether in written or electronic form (collectively, the “Agreement”) comprise the entire agreement between Seller and Buyer. The terms of the Agreement supersede any of Buyer’s supplemental or conflicting terms and conditions. No terms, conditions, or warranties other than those contained in the Agreement, and no agreement or understanding, whether oral or written, in any way purporting to modify the Agreement, whether contained in Buyer’s purchase order, shipping release forms, or elsewhere, shall be binding on Seller unless hereafter made in writing and signed by Seller. Neither Seller’s commencement of performance or delivery of Products nor Seller’s failure to object to conflicting or additional terms shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. Buyer is hereby notified of Seller’s express rejection of any terms inconsistent with those contained in the Agreement. Buyer accepts the terms and conditions contained in the Agreement by placing an order for Products on the Platform or otherwise instructing Seller to ship Products.
back to topThe prices of Products are those specified on the Platform and are denominated in United States Dollars or Canadian Dollars, as applicable. Prices for Products on the Platform may be withdrawn or changed at any time with or without notice. Prices are solicitations for offers to purchase. At all times, clerical or typographical errors are subject to correction by Seller. Prices for Products that have been ordered but not delivered may be increased in the event of an increase in Seller’s costs, change in market conditions, or any other cause or factor beyond Seller’s reasonable control. Unless otherwise agreed by Seller in writing, all prices quoted exclude transportation and insurance costs, duties, fees, levies, and taxes of any kind, including federal, state, and local sales, excise and value-added, and goods and services (collectively, “Taxes”), however designated or imposed. Any Taxes related to Products purchased pursuant to the Agreement are the responsibility of Buyer, and Buyer agrees to indemnify and hold Seller harmless for any liability for Taxes in connection with the sale of Products, as well as the collection and withholding thereof, including penalties and interest thereon. When applicable, and to the extent possible, Taxes shall appear as a separate item on any invoice or quote. If Buyer is a franchisee of an entity that is under common control with DPS (a “Franchisee-Buyer”), then Franchisee-Buyer acknowledges and agrees that DPS has assumed certain administrative burdens and costs related to negotiating with, and purchasing Products from, approved suppliers, and DPS may have also agreed to undertake the payment obligations and credit risk for the purchase of Products from approved suppliers. Franchisee-Buyer acknowledges that depending on the terms and conditions in its franchise agreement(s), it may or may not be required to purchase Products on the Platform as a condition to being a franchisee of one of DPS’s affiliates. In exchange for accepting such administrative burdens, costs, and/or payment obligations, DPS may (x) sell Products to Franchisee-Buyer at a profit, and/or (y) include in the price of each Product an administrative or other fee, in each case in its sole discretion. DPS also may accept rebates from Sellers and other third parties based on Buyer purchases. If Buyer is an employee of DPS or an entity that is under common control with DPS (i) any discounts or promotions offered on the Platform for a Product may not be combined with any other promotion or discount for such Product, and (ii) Products sold to a Buyer through the Platform may not be resold to a third party by such Buyer.
back to topOrders must be submitted on the Platform to Seller and will be binding upon Seller only when accepted by written acknowledgement. Seller reserves the right, at its option and without liability, to refuse any order in whole or in part or to specify an alternative delivery schedule if orders from all sources exceed its inventory or ability to deliver. Seller may allocate Products among its customers in its sole discretion. Buyer may not cancel, modify, or reschedule an accepted order without Seller’s written acknowledgement consent. If such cancellation or modification is permitted, Buyer agrees to pay to Seller all costs and expenses incurred in connection with such cancellation or modification as determined by Seller in its sole discretion.
back to topBuyer agrees to pay for all Products ordered on the Platform based on the displayed price subject to these Terms and Conditions. Such payments will be made to a payment processor chosen by DPS at the time of purchase or in arrears to a franchisor-affiliate of DPS in the case of certain Franchisee-Buyers approved for such credit terms in the sole discretion of DPS. Buyer agrees to pay all invoiced amounts due and owing for purchases on the Platform on demand and in any event no later than the date specified in any invoice sent to a Franchisee-Buyer by a franchisor affiliate of DPS. Past due amounts shall accrue interest at a rate equal to the greater of 18% per annum or the maximum rate permitted by applicable law, from the due date until paid, plus Seller’s collection costs and expenses. Seller expressly reserves all rights under the Uniform Commercial Code (“UCC”) for Buyer’s failure to pay for Products or any other breach by Buyer of the Agreement. In the event that Buyer breaches any of the terms and conditions contained in the Agreement, Seller shall be entitled to recover all costs, fees, and expenses, including but not limited to attorney fees, court fees, and collection costs. Buyer may not withhold payment of any amounts due and payable hereunder as a set-off, counterclaim, or deduction for any claim or dispute with a Seller or its affiliates.
back to topProducts will be delivered on the terms specified by Seller at time of purchase or as otherwise indicated on Seller’s invoice and subject to availability. Buyer is responsible for all costs, fees, and expenses in connection with freight, duties, cartage, and handling. Title and risk of loss pass to Buyer upon delivery. As security for payment of the purchase price, Buyer grants to Seller a purchase money security interest in and to all right, title, and interest in Products, wherever located, whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
back to topSeller may accept Products for return from Buyer in its sole discretion and in accordance with its return policy specified on the Platform. In the absence of such a policy, the following procedures: (i) Buyer shall submit written notice to Seller requesting authorization of such return; (ii) if Seller authorizes such return, Seller shall provide shipping instructions to Buyer; (iii) upon receipt of shipping instructions, Products must be returned within fourteen (14) days and Buyer shall be responsible for all shipping charges; (iv) Seller may charge a restocking fee, which may be deducted from the Buyer’s refund; and (v) Seller shall refund the balance due to Buyer within a reasonable time after receipt of the returned Products. Products may not be returned unless such Products are in the original packaging and in unused and original condition. By returning any Products, Buyer certifies that such Products were purchased from Seller and there has been no substitution from another supplier, distributor, or other source.
back to topSeller shall transfer to Buyer any warranties and indemnities authorized and provided by the manufacturers of the Products. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE PRODUCTS, AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WARRANTY AGAINST LATENT DEFECTS. ANY SUCH WARRANTIES, TERMS, AND CONDITIONS (STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
back to topBUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COSTS, LOSS OF DATA, REMOVAL OR REINSTALLMENT COSTS, INJURY TO REPUTATION OR LOSS OF BUYERS, OR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER. BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCTS GIVING RISE TO SUCH CLAIM, IRRESPECTIVE OF THE NATURE OF THE CLAIM AND WHETHER SOUNDING IN CONTRACT, TORT, WARRANTY, OR OTHERWISE.
back to topBuyer hereby grants to DPS: (a) the right to utilize Buyer Data on an identifiable basis for the purpose of operating and improving the Platform and Products, including activities ancillary thereto, and including providing such data to third parties for the purpose of such third parties providing a service to DPS in connection therewith; (b) the right to disclose Buyer Data to third parties as DPS determines in good faith is necessary to comply with applicable law, regulation or government order, and (c) a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual and irrevocable license to use anonymized Buyer Data that is aggregated with anonymized data of other Buyers which DPS may further sublicense to third parties. Buyer represents and warrants that the Buyer Data provided to DPS in connection with its use of the Platform and purchase of any Products is collected and/or validly obtained and utilized by Buyer in compliance with all applicable laws and regulations.
back to topBuyer will defend, indemnify, and hold harmless Seller and its parent company, their respective subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) arising out of or occurring in connection with the negligence or willful misconduct of Buyer or its employees or agents, including but not limited to (i) any misuse or modification of the Products by Buyer or its employees or agents, (ii) any act (or failure to act) by Buyer or its employees or agents in contravention of any safety instructions or procedures associated with Products, or (iii) any failure to store, install, operate, or maintain Products in accordance with applicable instructions.
back to topSeller is not liable for failure to fulfill its obligations for any accepted order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
back to topAll matters arising out of or relating to the Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provisions or rules. The UN Convention on Contracts for The International Sale of Goods and any other international discovery and service of process conventions shall not apply. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Mecklenburg County, North Carolina. Each Party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any suit, action, or proceeding relating to this Agreement as aforesaid, and further irrevocably waives any claim that such venue is not a convenient forum for any such suit, action, or proceeding.
back to topIn additional to any other term whose context may so require, the terms contained in Sections 1, 4, 5, 7, 8, 9, 10, 11, 12, 13, 15, and 17 will survive a cancellation of a purchase order.
back to topIn addition to any other remedies that Seller may have, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with the terms and conditions in the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
back to topEXCEPT TO THE EXTENT EXPRESSLY WAIVED IN WRITING BY SELLER, OR AS OTHERWISE REQUIRED BY LAW, BUYER AGREES TO KEEP CONFIDENTIAL AND SHALL NOT DISCLOSE ALL OR ANY PORTION OF THIS AGREEMENT OR ANY OF ITS TERMS OR CONDITIONS TO ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO PRICES, PRICE LISTS, REBATES, AND/OR PROMOTIONAL OFFERS RELATED TO THE PRODUCTS.
back to topPlease review all other Platform policies, including but not limited to our privacy policy, posted on this site. These policies also govern your use of the Platform. We reserve the right to make changes to our site, policies, and these Terms and Conditions at any time without notice.
back to topBuyer acknowledges that it has not been induced to purchase any of the Products from Seller by any representation, warranty, term, or condition not expressly set forth in the Agreement. Notice hereunder may be given by electronic means, including electronic mail. The Agreement constitutes the entire agreement between Buyer and Seller and supersedes all existing agreements and communications, oral or written, regarding Products. None of the terms and conditions contained herein may be added to, modified, superseded, or otherwise amended except by written agreement signed by Buyer and Seller. No waiver by Seller of any of the provisions of the Agreement is effective unless expressly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege under the Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The section headings contained herein are for convenience only and will not affect the interpretation of any provision contained herein. If any provision of the Agreement is held to be invalid, void, prohibited or unenforceable, the provision will be deemed amended and shall be interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Buyer may not assign any accepted order of the Products, in whole or in part, without Seller’s prior written consent. The Agreement shall be binding upon and shall inure to the benefit of any successors and assigns.
back to top