Terms and conditions of sale
These Terms and Conditions of Sale ("Terms and Conditions") apply to any and all purchasing activities between Athletes Needs, a Michigan corporation and its related companies, agents and/or representatives (collectively, the "Seller") and Purchaser and to any and all services performed and Goods sold or provided by Seller to Purchaser.
Any terms or conditions of Purchaser which are contradictory or supplementary to, or which deviate from these Terms and Conditions, or any objection, agreement or other attempt by Purchaser purporting to add to or modify these Terms and Conditions, shall not apply or be binding upon Seller unless expressly approved in writing by Seller. To the extent Purchaser's Purchase Order or any accompanying terms and conditions have additional or conflicting terms, these Terms and Conditions shall control and supersede the Purchaser's conflicting terms and conditions, and all such Purchaser's terms and conditions are expressly objected to by Seller without further notification. Under no circumstances is the performance of services for Purchaser or sale or provision of Goods to Purchaser, or the receipt of payment from Purchaser, shall be construed as acceptance of the Purchaser's terms or conditions. Any reference to the Seller's Terms and Conditions shall be construed to be the reference to these Terms and Conditions.
In addition to the terms defined elsewhere in these Terms and Conditions, the following terms shall have the following meanings:
Any Purchase Order received by Seller from Purchaser is an offer to purchase the Goods and/or services identified in the Purchase Order, and is subject to Seller's prior approval. Seller may accept the Purchase Order by issuing a written, signed acknowledgment or by commencing performance under the terms of the Agreement. All Purchase Orders are subject to and shall be governed exclusively by these Terms and Conditions. Purchaser acknowledges and agrees that it alone has selected the type and quantity of Goods being purchased from Seller.
Stated prices apply only to the specific quantities and delivery schedule shown. Unless specifically referenced in the Purchase Order, prices do not include sales, use, excise, privilege or other taxes, shipping, packing or transportation costs or any insurance charges, and Purchaser shall pay all such taxes, fees, costs and charges. If the Purchase Order indicates that the purchase price includes any other governmental impositions, the purchase price is based upon the amount of those impositions as of the date of the Purchase Order, and in the event of any increase in those costs, the purchase price shall be increased equivalently.
Following the acceptance of the Purchase Order by Seller:
With respect to all services performed and/or Goods provided by Seller to Purchaser, the Seller acts and shall be at all times an independent contractor of Purchaser, and nothing contained in these Terms and Conditions or otherwise shall be construed to create any joint venture, partnership, or other association between the parties other than that of independent contractor.
Except where Purchaser requests in writing that the Seller engage specific third parties to perform the services for Purchaser, the Seller shall use reasonable care in its selection of third parties, or in selecting the means or methods of performing services and/or providing Goods to Purchaser. Any advice by the Seller that a particular third party has been or should be selected to render services shall not be construed to mean that the Seller warrants or represents that such a third party will render such services nor does Seller assume any responsibility or liability for any acts and/or omissions of such third parties and/or its agents. Purchaser agrees to assert and bring any and all claims in connection with the acts or omissions of a third party solely against such third party and/or its agents; except where a conflict of interest or business conflict exists, upon Purchaser's request, the Seller shall reasonably cooperate with Purchaser in connection with any such claim, and Purchaser shall pay or reimburse Seller for its actual charges or costs incurred in connection with such cooperation.
Subject to the other terms of these Terms and Conditions, Seller warrants that (a) at the time of delivery of the Goods to Purchaser, the Goods shall be of the quantity, type and description specified in the Purchase Order, and (b) upon completion of the services, the services have been performed as described in the Purchase Order. This limited warranty does not cover Seller's abuse, mishandling, misuse, or negligence, or accidents or damage caused by natural causes such as fire, storm, or flood or other causes beyond the reasonable control of Seller. THE EXCLUSIVE REMEDY UNDER THIS LIMITED WARRANTY SHALL BE THE REPLACEMENT OF THE NONCONFORMING GOODS WITH SAME OR SUBSTANTIALLY SIMILAR GOODS, COMPLETION OF THE AGREED UPON SERVICES, OR THE REFUND OF THE PURCHASE PRICE PAID FOR THE NONCONFORMING GOODS, AS MAY BE APPLICABLE, AT SELLER'S SOLE AND ABSOLUTE DISCRETION.
EXCEPT FOR THE LIMITED WARRANTY UNDER SECTION 13, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES TO THE PURCHASER OF ANY KIND, EITHER EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, DURABILITY, RELIABILITY, SUITABILITY, CONDITION OR QUALITY, OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE), REGARDING OR RELATED TO THE GOODS AND SERVICES SOLD AND/OR PROVIDED BY SELLER OR ANY THIRD PARTY ON BEHALF OF SELLER TO PURCHASER, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY DISCLAIMED. EXCEPT FOR THE LIMITED WARRANTY UNDER SECTION 13, ANY AND ALL GOODS PROVIDED OR SOLD TO PURCHASER ARE SOLD OR PROVIDED ON AN "AS IS" "HOW IS" AND "WHERE IS" BASIS. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHALL NOT BE RELIED ON BY PURCHASER AND ARE NOT PART OF ANY AGREEMENT BETWEEN SELLER AND PURCHASER.
PURCHASER'S REMEDY UNDER SECTION 13 IS PURCHASER'S SOLE REMEDY. IN CONNECTION WITH ANY SERVICES OR GOODS PROVIDED AND/OR SOLD TO PURCHASER BY SELLER OR BY ANY THIRD PARTY RETAINED BY SELLER, ANY DELAY IN PERFORMING THE SERVICES OR PROVIDING THE GOODS, OR THE FAILURE TO PERFORM SERVICES OR PROVIDE GOODS, SELLER SHALL NOT HAVE ANY LIABILITY TO THE PURCHASER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, STATUTORY, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE, LOSS OF GOODWILL, EVEN IF IT HAS BEEN PUT ON NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING OR EXPANDING THE PROVISIONS OF ANY OF THE SECTIONS OF THESE TERMS AND CONDITIONS AND SUBJECT TO THE FOLLOWING SENTENCE, IN NO EVENT SHALL SELLER'S LIABILITY FOR MONETARY DAMAGES EXCEED THE AMOUNT THE PURCHASER HAS ACTUALLY PAID TO THE SELLER FOR THE GOODS OR SERVICES WITH RESPECT TO WHICH SUCH LIABILITY AROSE.
Purchaser acknowledges and agrees that the provisions of these Terms and Conditions that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of and are fundamental to the parties' understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions of these Terms and Conditions and shall be enforced to the fullest extent permitted by law.
Without limiting the generality of the foregoing, THE PURCHASER AGREES THAT ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS OF DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID, EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCES THAT CAUSE ANY EXCLUSIVE REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.
The limitations contained in this Section apply regardless of the form of action, including actions in contract, tort (including negligence), and strict liability.
Purchaser shall indemnify, defend and hold the Seller harmless from any and all claims, actions, liabilities, losses, expenses, penalties, fines, damages and costs including, without limitation, reasonable attorneys' fees, which the Seller may at any time incur, suffer or be required to pay that arise from or are in connection with (a) any breach by Purchaser of these Terms and Conditions, (b) any acts or omissions by Purchaser, (c) any acts or omissions of third parties engaged by the Seller pursuant to the express written instructions from Purchaser, and/or (d) any conduct of Purchaser and those under its direction or control.
Seller shall not be liable for any delay, impairment or failure of performance and any such delay, impairment or failure of performance will be excused if it results in whole or in part from any cause beyond the Seller's control including, without limitation, fires, floods, explosions, accidents or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, terrorism, piracy, riots or embargo delays, government allocations or priorities, shortages of transportation, fuel, labor or materials, severe weather conditions, changes of law or regulation, or any other circumstance or cause beyond Seller's control. Such excuse from performance shall extend so long as the event continues to delay or impair the Seller's performance.
The Agreement may be terminated by Seller at any time if (a) the terms governing the Agreement are not strictly complied with by Purchaser, (b) Purchaser becomes insolvent, makes an assignment for the benefit of creditors or is unable to meet its obligations as they become due, (c) a petition in bankruptcy or insolvency is filed by or against Purchaser, (d) any amounts due to the Seller by Purchaser are unpaid, or (e) Seller reasonably believes that Purchaser will not be able to pay Seller the amounts due hereunder. Such termination shall not prejudice Seller's rights to any amounts due under this Agreement. In the event of the breach of this Agreement by Purchaser, in addition to any other rights or remedies available to it, Seller may suspend performance of the Agreement until Purchaser's breach has been cured. In the event of a breach of this Agreement by either party which is not cured within 30 days after written notice of default by the other party (other than the failure to pay money when due, in which case no notice of default shall be necessary), in addition to any other rights or remedies a party may have, the non-breaching party may terminate this Agreement by written notice to the other.
The remedies stated in these Terms and Conditions are not exclusive of any other remedies provided for by law or at equity.
These Terms and Conditions may only be modified, altered or amended in writing signed by both Purchaser and Seller, and any attempt to unilaterally modify, alter or amend same shall be null and void.
Where appropriate, words that reflect the masculine, feminine, or neuter gender shall be construed to also reflect the other genders; and words that reflect either the singular or plural shall also be construed to reflect the other.
The Section headings contained in these Terms and Conditions are for reference purposes only and shall not in any way affect the meaning or interpretation of these Terms and Conditions.
Any Agreement entered into by Purchaser and Seller may be executed in multiple counterparts, each of which shall constitute an original agreement, but all of which shall constitute only one agreement. The signatures need not all be on a single copy of any Agreement between the parties, and may be facsimiles rather than originals, and shall be fully as effective as though all signatures were originals on the same copy.
Any provision of these Terms and Conditions which is determined to be invalid or unenforceable shall not affect the remainder of these Terms and Conditions, which shall remain in full force and effect.
No waiver by Seller of any provision of these Terms and Conditions shall be effective unless it is written and signed by Seller. The Seller's decision to waive any provision herein or to waive any breach by Purchaser of any provision herein, either by conduct of otherwise, shall not constitute or be deemed to be a further or continuing waiver of such provision or a waiver of any preceding or succeeding breach of the same provision or to otherwise waive or invalidate any other provision herein.
Seller does not intend to confer any benefits in providing the services for the Purchaser on any person, entity or any other third party other than Purchaser, even if such a third party is paying, directly or indirectly, for the Seller's services.
Except as otherwise provided in these Terms and Conditions, all claims against Seller must be made in writing and received by Seller, within 60 days of the event giving rise to claim; the failure to give Seller such timely notice shall be a complete defense to any suit or action commenced by Purchaser with respect to such claim. All suits against Seller must be filed and properly served on the Seller within one (1) year of (a) the delivery of the Goods (or the applicable portion of the Goods) or (b) the completion of the services, and thereafter shall be forever barred.
The Agreement, these Terms and Conditions and the relationship between the parties shall be governed by the law of the State of Michigan, USA without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Michigan. The parties agree that State of Michigan shall be the exclusive jurisdiction for all disputes. The Oakland County Circuit Court or the Federal District Court for the Eastern District of Michigan is a convenient venue for both parties.
Any notice to Seller or Purchaser shall be in writing, and shall be deemed sufficient if personally delivered, sent to the party's last known mailing address, and/or to such other address as to which proper notice has been given, by commercially reputable courier service provided receipt is confirmed, or via facsimile or e-mail provided in either case that proper notice of the facsimile number(s) and e-mail address(es) has been given pursuant to this Section, and receipt is confirmed. Notice shall be deemed to have been given when personally delivered, one (1) business days after being delivered by commercially reputable courier service, one (1) business day after acknowledgment of receipt via facsimile transmission, or one (1) business day after having been sent by e-mail.
Rev. 1, 9/28/2011