Adidas Golf Accessories 2012 by Drivingi

More catalogs by Drivingi | Adidas Golf Accessories 2012 | 20 pages | 2011-12-21


Page 19 of Adidas Golf Accessories 2012

these terms and conditions are referred to on all invoices issued by tmax gear llc a delaware limited liability company dba tmax gear tmax having its principal place of business at 3182 lionshead avenue carlsbad california 92010-4701 and are the terms and conditions upon which tmax makes all sales the terms of sale all purchases made by any buyer the buyer are made conditional to these terms of sale unless tmax has waived in writing any specific terms which will supersede and replace the terms of sale contained herein 1 acceptance buyer accepts all of the terms of sale stated by any of the following acts 1 buyer makes an offer to purchase goods 2 buyer s written acknowledgment 3 buyer s acceptance of any shipped goods that have been specified for delivery or 4 any other act or expression of acceptance by buyer tmax s acceptance is based solely on these terms of sale in their entirety without any modification orally or in writing that is inconsistent with these terms of sale tmax rejects any other terms or conditions that are not consistent in their entirety with these terms of sale tmax s failure to respond to any different terms or conditions shall not be deemed as tmax s acceptance or approval thereof 2 payment terms and credit tmax s terms of sale are net 30 with approved credit all goods and applicable freight and insurance charges will be invoiced as of the date of shipment tmax reserves the right to suspend credit change credit terms or deny credit at its sole discretion with or without notice to buyer buyer s failure to pay invoices when due at tmax s election makes all subsequent invoices immediately due and payable irrespective of prior negotiated terms tmax may withhold delivery or shipment of goods until buyer s account is settled in full and buyer expressly waives any liability of tmax for any failure to deliver goods for accounts in arrears 3 purchase price payment taxes buyer agrees to pay the total purchase price as shown on the tmax invoice plus any additional or applicable sales or use taxes buyer agrees and acknowledges that any amount due tmax is contracted for in united states dollars payment is due upon receipt or on the terms set forth in writing on any tmax invoice minus any deposit paid in advance all personal property taxes assessable on the purchased goods or after delivery are the responsibility of buyer all unpaid invoices shall bear interest in the amount of 2 of the outstanding balance per month commencing on the date that payment is due buyer s failure to make timely payment may result in such action as commencement for collection proceedings revocation of credit shipment stops and termination of all additional orders or shipments in the event that buyer s invoices are sent for collection activities buyer agrees to pay all costs and attorneys fees association with the cost of collection 4 partial shipments any request for partial shipment must be stated on the buyer s purchase orders buyer agrees to pay for any partial shipment of goods under the same terms as stated herein payment for any partial shipment shall equal the pro-rata amount of the total amount that the partial shipment represents all such installments or back orders shall be separately invoiced and paid for when due without regard to subsequent shipments and deliveries delay in delivery of an installment or back order shall not relieve buyer of its obligation to accept remaining deliveries 5 shipping freight risk of loss delivery buyer agrees to pay for all costs associated with the transportation of the goods in transit to the delivery place specified on the tmax invoice buyer shall be responsible for the filing of any claims with any carrier for damage to goods occurring during transit tmax will arrange for freight to the designated fob location agreed between the parties on the purchase order for all transactions unless otherwise stated on the front of the invoice all risk of loss or damage with respect to the ordered goods shall pass to buyer upon delivery by tmax to the carrier or buyer s representative at tmax s warehouse tmax shall use commercially reasonable efforts to deliver all ordered goods as specified on the invoice but shall not be liable in any manner for delays in delivery tmax expressly reserves the right to make delivery in installments and back order goods unless buyer specifically states otherwise in writing and which is accepted by tmax on its written invoice for any international orders the goods are sold on a delivered basis with insurance paid and duties and international freight unpaid tmax assumes no responsibility for charges associated with customs duties or any other taxes or duties within the country designated for delivery tmax shall not be responsible for any shipment delays caused by delays beyond the reasonable control of tmax or product unavailability 6 claims and damages all claims for damaged or defective goods must be made within 10 days after delivery of the goods goods purchased for future sale must be checked for conformity with the purchase order invoice and shipping documentation within 10 days after delivery by tmax failure to make a claim within such time frame shall constitute a complete acceptance of the goods any goods that are rejected by buyer must be documented as to the valid reason for commercial rejection and shall be based solely on a valid claim in tmax s sole discretion that the goods are defective damaged or do not meet tmax s technical specifications 7 title title to each of the goods shipped by tmax shall pass to buyer upon payment to tmax tmax reserves title to the goods as security for the performance of buyer s obligations 8 product returns no product which has been accepted by buyer may be returned without tmax s express written authorization and in no case shall any claim for any product return of any kind including defective product be made more than 90 days after shipment orders which have been accepted by tmax are not subject to cancellation or changes except with tmax s prior written consent tmax may require as a condition for its consent to return any previously ordered goods reimbursement for any costs incurred in the performance of the original order or additional costs due to buyer s changes or modifications tmax reserves the right to change or modify its return policies at any time with or without notice to buyer save for any prior shipments made by tmax to buyer under existing issued purchase orders and invoices tmax will not accept any returns without prior written authorization of tmax any return must be pre-approved by tmax and the buyer must obtain a return authorization number ran if tmax issues a valid ran allowing the buyer to return goods the buyer will deliver the goods to tmax s designated address in the united states the buyer shall be responsible for all applicable shipping costs taxes insurance import or customs duties on any returned goods 9 account selection and transshipments/unauthorized resellers tmax gear only sells its goods to selected accounts for retail sales on the express condition that such accounts may not resell to any other person or company who is not an end user of the goods retail accounts may only sell from the retail locations approved in writing by tmax gear and any new retail trade locations fictitious names or trade names used by buyer must be approved in writing by tmax gear as a new account location or name at the sole discretion of tmax gear the resale trans-shipment or redistribution of tmax gear goods to anyone other than an end user or consumer is expressly prohibited tmax gear may refuse to deal with any buyer who directly or indirectly trans-ships redistributes or otherwise diverts goods for unauthorized resale whether in the united states or abroad 10 intellectual property rights buyer agrees not to repackage re-mark disassemble re-assemble or otherwise modify the goods from their original packaging as delivered by tmax to buyer for resale buyer may not purchase sell or offer to sell products that infringe tmax s trademark patent copyright or other intellectual property rights including the sale of products bearing counterfeit marks logos trade names or the like or products that are generally known in the industry as clones or knock-offs of tmax s genuine goods buyer agrees not to adopt for its own use any trademarks trade names designs or other materials which would infringe or violate any intellectual property rights owned by tmax all advertising sales materials brochures point of purchase displays or other materials developed by buyer which incorporates any of tmax s intellectual property shall be approved in advance of publication by tmax by giving tmax 10 days prior written notice for its approval not to be unreasonably withheld provided however that if a particular type of advertising or sales material is approved by tmax each subsequent use by buyer shall not require tmax s prior written approval 11 warranties and disclaimers tmax represents and warrants that at the time of delivery of the goods it has the right to sell the goods to buyer free and clear of any liens or encumberances except for any bank financing or factoring arrangements or other than those which may arise out of these terms of sale any goods purchased by buyer may be covered by a manufacturer s warranty however the buyer recognizing that tmax is not the manufacturer of the goods expressly waives any claim against tmax based on any claim of product defect infringement of any patent with respect to the goods or for any indemnity against any patent claim made by any third party against the buyer no other warranty or guarantee or representation whether oral or written for any good will exist unless expressly stated in the item description the express warranties contained here in are in lieu of any and all other warranties tmax hereby disclaims all representations and warranties express or implied as to the goods including but not limited to any implied warranty of fitness for a particular purpose or warranty of merchantability tmax will not be liable for any damages loss cost or expense for the breach of this warranty 12 limitations of liability tmax will not be liable under any circumstances for any special consequential incidential punitive or exemplary damages arising out of or in any way connected with this agreement to sell goods to the buyer including damages for loss of use lost profits lost data or damages paid to third parties even if tmax has been advised of the possiblity of such damages tmax s entire liability to buyer shall be limited to the total invoice price paid or incurred by buyer for the goods that are the subject of any dispute or claim for damages 13 miscellaneous a any purchase order invoice or these terms of sale may not be assigned by buyer without the prior written consent of tmax gear not to be unreasonably withheld or denied any attempted assignment without such consent shall be void b any notice provided for herein shall be in writing and sent by overnight or certified mail postage prepaid to the address of the party set forth herein either party may change its mailing address by giving the other party written notice of the address change by the means set forth herein c each purchase order submitted by buyer to tmax is subject to tmax s acceptance and shall only become effective if accepted by tmax in its sole discretion d any change or cancellation of a purchase order by buyer after acceptance by tmax may result in a cancellation charge to be paid by buyer to seller not to exceed the actual purchase price of the goods as originally ordered by buyer if a cancellation or modification is submitted by buyer after shipment by tmax tmax retains the right to collect the entire purchase price of the goods as invoiced to buyer no goods shall be returned to tmax without tmax s prior written authorization a restocking fee may be charged by tmax and buyer agrees to pay such restocking charge not to exceed 30 of the invoiced purchase price of the goods ordered by buyer and returned with tmax s prior written approval e the parties agree that these terms of sale shall be interpreted under the laws of the state of california without regard to any internal conflicts of laws principles the parties further agree to the exclusive jurisdiction of the courts located in san diego county california as the exclusive venue for any action arising out of the subject matter of the purchase orders invoices or these terms of sale between the parties f if any legal action is taken to enforce the terms of the purchase orders invoices or these terms of sale the prevailing party shall be entitled to its reasonable attorneys fees and costs without regard to any other relief to which such party may be entitled g any and all claims demands causes of action or disputes of any nature including but not limited to tort and contract claims or claims based on any federal or state laws statutes or regulations arising out of in connection with or relating to the subject matter of the purchase orders invoices or terms of sale between the parties shall be resolved by final binding non judicial arbitration by a single arbitrator mutually agreeable to the parties and such arbitration shall be conducted in accordance with the federal arbitration act it is the parties express intent that arbitration shall be the sole and exclusive venue for resolving disputes hereunder if the parties are unable to agree on a single arbitrator within 30 days after the dispute arises and a commercially reasonable time for resolving impasse is reached not to exceed 30 days the choice of arbitrator shall be submitted to and made by the random choice of the jams organization located in san diego california each party shall have no longer than one day to present its position and the entire proceedings before the arbitrator shall be no more than 3 consecutive days and the decision of the arbitrator shall be made in writing no more than 30 days following the end of the proceeding such an arbitration award shall be a final and binding determination of the dispute and shall be enforceable as a judgment of a court of san diego county california having exclusive jurisdiction and venue over the parties the prevailing party s reasonable attorneys fees and costs as determined by the arbitrator shall be awarded in addition to any amount awarded by the arbitrator and the non-prevailing party expressly agrees to pay such award fees and expenses as awarded by the arbitrator by agreeing to be bound to this provision the parties agree that they are waiving their rights to a jury trial this provision does not preclude either party from seeking the intervention of a court of competent jurisdiction and venue for injunctive or other equitable relief to remedy or prevent the violation of these terms of sale h each party agrees that written communications shall include electronic communications and which if sent via commercially reasonable and secure electronic means shall be deemed the equivalent of written and signed documents where valid signatures binding the parties are on electronic versions of documents i these terms of sale may be unilaterally modified changed supplemented or amended by tmax from time to time in tmax s sole discretion and such modified or changed terms of sale may be published in writing to buyer directly or via tmax s published catalogs or internet website.