TERMS OF SALE

These TERMS OF SALE (this “Agreement”) concern the purchase of products through this website, DeAlbaTamales.com (the “Site”), and constitute a legally binding agreement between De Alba Tamales, LLC (“Company”) and you, the person purchasing a product(s) through this Site (collectively, “you” or “your”). You and Company are sometimes referred to herein each as a “Party” and collectively as the “Parties”.

Carefully read each and every term and condition of this Agreement in its entirety, as well as the most recent version of the Site’s Terms of Use and Privacy Policy.

In order to complete your purchase of a product(s) through this Site, you must accept and agree to this Agreement by, and reaffirm your acceptance and agreement of the most recent version of the Site’s Terms of Use and Privacy Policy, by clicking on the “I AGREE” button found at the end of this Agreement.

In consideration of the premises and promises contained herein, and for such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you and Company hereby agree to the following:

1. Age Requirement.

You represent and warrant to Company that you are at least eighteen (18) years of age.

2. Sale of Products.

Subject to the terms and conditions of this Agreement, you agree to purchase from Company, and Company agrees to sell and deliver to you, the products offered for sale through the Site that you have identified in connection with the transaction made subject to this Agreement (the “Products”). In connection with your purchase of the Products, you agree to pay the sales price of the Products, plus all applicable shipping and handling costs, plus all applicable taxes.

You represent and warrant to Company that you have the full legal right and authority to use the credit card(s) or other payment method(s) utilized in connection with your purchase of the Products through the Site.

In connection with your purchase of the Products through the Site, you may be asked to supply certain information relevant to your purchase, including, without limitation, your credit card number and expiration date, your billing address, your phone number, your e-mail address, and/or your shipping information. By submitting such information, you grant Company the irrevocable, unencumbered, royalty-free, fully-paid, and perpetual right to provide such information to third parties (e.g., payment processing companies, carriers) for the purpose of facilitating the transaction. Company may require, but is not obligated to require, the verification of such information as a condition precedent to the completion of the transaction.

3. Shipment.

Company will ship, or cause the shipment of, the Products to you at the location designated by you in connection with this transaction. Company may ship the Products to you using Company’s carrier of choice. All shipments of the Products shall be F.O.B. your shipping point, and you shall bear all risk of loss or damage in transit. Company shall have no obligation to insure any shipment of the Products. You are responsible for all shipping, handling, and other expenses associated with the shipment of any Products.

4. Returns; Exchanges; Refunds.

No used or partially used Products can be returned, exchanged, or made subject to a refund.

If you are not fully satisfied with your purchase, then you may return it to Company in exchange for conforming goods or a refund, provided that you comply with all of the following terms and conditions:

1. You must provide Company with a written notice of rejection (the “Notice of Rejection”) with twenty-four (24) hours after delivery of the Products, and return the non-conforming Products to Company within seventy-two (72) hours after delivery of the Products.
2. The Notice of Rejection must specify the reason for rejecting the shipment of Products and, if applicable, include photographs or other evidence that the shipment of Products do not conform to your order. You shall not reject a shipment of Products for any reason other than such shipment does not conform to your order of the Products or the terms and conditions of this Agreement.
3. The Notice of Rejection must also specify whether you want Company to replace the non-conforming Products with conforming Products within a commercially reasonable time after the return of delivery of such non-conforming goods to Company, or a refund or credit to your account of the price paid by you for such non-conforming Products.
4. All non-conforming Products must be returned to Company in a commercially reasonable manner, so that Company may properly assess whether the Products were non-conforming upon their original delivery.
5. You shall be responsible for the payment of any shipping, handling, and other expenses and applicable taxes associated with the return of all non-conforming goods and the shipment to you of all conforming goods and the processing of all refunds or credits to your account.

Please direct each Notice of Rejection and all questions or comments you may have about Company’s return policy to any one of the following:

By mail:          De Alba Tamales, LLC, attn.: Sales Department, 902 S. Cage Boulevard, Pharr, Texas 78577, with a subject line of “Returns”.

By e-mail:       sales@dealbabakery.com, with a subject line of “Returns”.

5. Disclaimer.

All products and services offered, sold, and/or licensed through the Site (including, without limitation, the purchased Products) are provided on an “as is”, “where is”, “as available” and “with all faults” basis. Company does not make, nor has Company made, any representations or warranties of any kind or nature (whether direct or indirect, oral or written, or express or implied) to you with respect to any such products or services. Accordingly, Company expressly disclaims any and all express warranties, implied warranties (including, without limitation, implied warranties of merchantability, fitness for a particular purpose, good faith and fair dealing, title, non-infringement, quality, accuracy, and performance), and warranties arising from conduct, course of dealing, custom, and usage in trade with respect to such products and services. Company has made no affirmation of fact or promise relating to any such products or services that has become any basis of this bargain. There are no warranties (express, implied or otherwise) that extend beyond the face of this Agreement.

6. Limitation of Liability.

In no event shall Company or Company’s officers, directors, members, managers, owners, partners, agents, employees, contractors, subcontractors, vendors, representatives, parents, subsidiaries, successors, assigns, transferees, or licensees be held liable under any theory of liability, whether in an equitable, legal or common law action arising under or in connection with this Agreement, for contract, quasi-contract, strict liability, indemnity, tort (including, without limitation and by way of example only, negligence, products liability, infringement, or dilution), or otherwise, for: (a) any damages which, in the aggregate, exceed the amount paid by you for the Products under this Agreement and notwithstanding the failure of essential purpose of any remedy; or (b) any special, incidental, consequential, indirect, exemplary, or punitive damages of any kind or nature whatsoever (including, without limitation, business interruption, loss of business opportunity, loss of profits, cost to cover, or loss of goodwill), even if notified of the possibility of such damage, and notwithstanding the failure of essential purpose of any remedy.

7. Representations and Warranties.

You represent and warrant to Company that: (a) you have carefully read and understand the terms and conditions of this Agreement in its entirety; (b) you have the full, exclusive and unencumbered right and authority to enter into and perform this Agreement; and (c) no obligation, disability, agreement or adverse claim exists that may restrict the performance of your obligations under this Agreement.

8. Indemnification.

You shall indemnify, release, and hold harmless Company and Company’s officers, directors, members, managers, owners, partners, agents, employees, contractors, subcontractors, vendors, representatives, parents, subsidiaries, successors, assigns, transferees, and licensees (collectively, the “Indemnitees”) from and against any and all liabilities, claims, suits, demands, proceedings, judgments, and other actions brought against any of the Indemnitees, together with any damages, fines, penalties, and expenses (including reasonable costs and outside attorneys’ fees) incurred by the Indemnitees, which are the result of the breach of any of the representations, warranties, promises, and/or covenants made by you under this Agreement.

9. Governing Law.

This Agreement, and all disputes, controversies, and claims arising from or in connection with this Agreement and/or the Parties’ relationship (whether grounded in contract, tort, statute, law, or equity), shall be governed, interpreted, construed, and enforced in accordance with the laws of the State of Texas in the United States of America and applicable federal law of the United States of America, regardless of its place of execution, its place of performance, and any conflicts of law analysis. For the avoidance of any doubt, the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or any disputes, controversies, or claims arising from or in connection with this Agreement or the Parties’ relationship (whether grounded in contract, tort, statute, law, or equity).

1. Dispute Resolution.

Each Party hereby irrevocably submits to the exclusive personal jurisdiction and venue of the state courts of Bexar County, Texas in the United States of America and the United States District Court for the Western District of Texas, San Antonio Division in the United States of America in each case to the exclusion of all other courts or venues, for the purpose of litigating any dispute, controversy, or claim arising from or in connection with this Agreement, the subject matter of this Agreement, and/or any transactions made through the Site, whether grounded in contract, tort, law, or equity, and covenant and agree that neither of the foregoing is an inconvenient venue or forum.

1. No Relationship.

In no event shall this Agreement, or the performance of a Party’s rights or obligations under this Agreement, create any type of fiduciary, franchise, agency, employment, independent contractor, partnership, or joint venture relationship between the Parties.

2. Excused performance.

Company will be excused for any failure to perform under this Agreement to the extent that its performance is prevented by any reason outside of its reasonable control or that may be characterized as a force majeure event.

3. Assignment and Delegation.

Company may freely assign and delegate its rights and obligations under this Agreement and without notice to you. You shall not assign or delegate any of your rights or obligations under this Agreement without Company’s prior written consent.

4. Headings. Headings are inserted in this Agreement for reference and convenience only and shall not interpret, define, limit, or describe the scope, intent, terms, or conditions of this Agreement.
5. Modifications.

This Agreement cannot be modified, amended, released or waived, in whole or in part, except by a written amendment to this Agreement in the form of a separate click-through agreement that is offered by Company and accepted by you, or by a separate written agreement that is signed by you and Company.

6. Severability.

If any term or condition of this Agreement is deemed invalid or unenforceable by a court of law with binding authority, then the remaining terms and conditions shall not be affected, and the court shall reform the invalidated or unenforceable term or condition to the maximum extent permitted under the law and consistent with the original intent of this Agreement.

7. Entire Agreement; Conflicting Terms.

This Agreement, together with the applicable terms and conditions of the most recent version of the Site’s Terms of Use and Privacy Policy, sets forth the entire agreement and understanding between the Parties and supersedes all prior agreements and understandings made between the Parties (orally or in writing), if any, relative to the subject matter hereof. If any term or condition of this Agreement conflicts with a term or condition of the most recent version of the Site’s Terms of Use or Privacy Policy, then the conflicting term or condition of this Agreement shall control and govern. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective affiliates, successors, devisees, heirs, assigns, and transferees.

8. Contact Us.

Please direct any questions or comments you may have about this Agreement to any one of the following:

By mail:          De Alba Tamales, LLC, attn.: Sales Department, 902 S. Cage Boulevard, Pharr, Texas 78577, with a subject line of “Purchase Agreement Question”.

By e-mail:       sales@dealbatamales.com, with a subject line of “Purchase Agreement Question”.

The foregoing contact information may change from time-to-time by written notice to you.

9. Effective Date.

The effective date of this Agreement is July 21, 2014.

If you accept and agree to this Agreement in its entirety, then please indicate such acceptance and agreement by clicking on the “I AGREE” button below, at which time this Agreement shall automatically be deemed made and entered into by you and Company.

Please print and retain a copy of this Agreement for your personal records.