These Terms and Conditions of Sale (the “Agreement”) are the entire agreement between Dynamax, Inc. with offices at 1300 Smith Rd, Ste 104, Austin, Texas 78721 (“Supplier”) and the Customer concerning Customer’s purchase of Supplier products from the Dynamax website located at www.medicineballs.com as well as all associated sites linked to www.medicineballs.com by Dynamax, Inc., its subsidiaries and affiliated companies (collectively, the “Site”).
This Agreement supersedes, and its terms govern, any prior agreements (including without limitation any conflicting terms in any nondisclosure agreements), proposals or other communications, oral or written, between the parties with respect to the Products (as defined below). This Agreement governs all documents, including without limitation all requests for proposal/requests for quote and purchase orders, issued by Customer with respect to the Products and any additional or conflicting terms and conditions contained in any such documents are of no force and effect and rejected unless separately accepted in writing by an authorized representative of Supplier.
“Documentation” means the Supplier documentation for the Products made available by Supplier to Customer in hard copy or in electronic form with the Products or otherwise under this Agreement.
“Products” means the products that are being purchased via the Site.
2. Prices and Payment. Supplier’s prices do not include any foreign, federal, state or local sales, use or other similar taxes or duties or other fees (including any import or export fees), however designated, levied against the sale, licensing, delivery or use of the Products. Customer is solely responsible for and shall pay all such taxes, duties and fees, provided, however, that Customer shall not be liable for any taxes based on Supplier’s net income. If Customer is required to withhold or deduct any taxes from any payment to Supplier hereunder, Customer shall furnish to Supplier, without delay, a tax certificate showing the payment of such tax. Payment shall be made at the time of the order via the Site. All payments shall be made in U.S. dollars, unless otherwise specified by Supplier in writing. Customer agrees that Supplier shall charge the amounts specified on the Site to the payment method provided by Customer. Customer also agrees to pay or reimburse all fees and expenses reasonably incurred by Supplier in collecting any amounts due under this Agreement, including, but not limited to, all reasonable attorneys’ fees associated with the collection.
3. Order Procedure; Reschedule and Delivery. All orders of the Products shall be made via the Site (“Orders”). Orders are subject to approval and acceptance by Supplier in writing. Supplier will accept or reject Orders within ten (10) days after Supplier’s receipt and Orders not accepted within that time shall be deemed rejected. Purchaser may accept an Order by sending written notice to Customer or by shipping Products to Customer. Customer may cancel an Order within 24 hours for a full refund. Supplier may make partial shipments, and Customer may not reject partial shipments. Any delay in delivery of any instalment will not relieve Customer of its obligation to accept the remaining deliveries. Supplier will not be liable for any failure to ship complete orders or for any shipment delay. Title to and Risk of loss for the Product(s) passes to the Customer once the Product(s) is(are) delivered to the address specified by the Customer. Unless specified in the Order, Supplier will select the mode of delivery and the carrier. Customer will be responsible for and pay all packing, delivery, freight and insurance charges, which Customer shall pay at the time of Order. All Products will be deemed accepted upon delivery.
4. Limited Warranty; Disclaimer of Warranties. Supplier warrants to Customer that the Products (and for purposes of this Section 4 excluding Prototypes) will substantially conform to the functional specifications set forth in the Documentation for two (2) years following shipment to Customer when used without material alteration and in accordance with this Agreement and any directions set forth in the Documentation. THIS LIMITED WARRANTY SHALL BE VOID IF THE PRODUCTS IS SLAMMED ON THE FLOOR. THE PRODUCT IS NOT INTENDED TO BE THROWN AGAINST THE FLOOR AND DOING SO WILL RESULT IN DAMAGE TO THE PRODUCT THAT IS NOT COVERED BY THIS WARRANTY. Non-Supplier branded products receive warranty coverage as provided by the relevant third party supplier. The foregoing warranty shall not apply: (i) if the Product are not used in accordance with the Documentation; (ii) to any modifications to any of the Products that are not made by Supplier; (iii) if a defect is due to any third party product; (iv) if Products are damaged by factors or circumstances outside of Supplier’s control (including but not limited to accident, fire, and water exposure) and acts of God, or (v) any defects or failures in the Products that arise from negligence or abuse by Customer, including without limitation throwing the product against the floor. Supplier’s sole obligation, and Customer’s exclusive remedy, for any breach of the foregoing warranty shall be, at Supplier’s option, replace any defective Product with a conforming Product, or, to refund any monies paid by Customer to Supplier for such non-conforming Product. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4, SUPPLIER AND ITS LICENSORS AND SUPPLIERS MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES AND TO THE EXTENT PERMITTED BY LAW AND SUPPLIER AND ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM AND EXCLUDE ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING DUE TO COURSE OF CONDUCT OR USAGE OF TRADE. SOME STATES DO NOT PERMIT THE DISCLAIMER OF WARRANTIES IN CERTAIN CIRCUMSTANCES AND SO PORTIONS OF THE FOREGOING MAY NOT APPLY TO CUSTOMER.
5. Limited Liability. IN NO EVENT SHALL SUPPLIER’S LIABILITY TO CUSTOMER EXCEED THE AGGREGATE AMOUNTS PAID BY CUSTOMER TO SUPPLIER FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE ORDER. NEITHER SUPPLIER NOR ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE TO CUSTOMER OR ANY OTHER ENTITY FOR ANY (A) SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, (B) LOST PROFITS OR LOST BUSINESS, OR (C) COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR GOODS, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IN THIS SECTION SHALL APPLY (A) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND (C) REGARDLESS OF THE FORM OF ACTION, WHETHER BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER THEORY. SOME STATES DO NOT PERMIT THE LIMITATION/EXCLUSION OF DAMAGES IN CERTAIN CIRCUMSTANCES AND SO PORTIONS OF THE FOREGOING MAY NOT APPLY TO CUSTOMER.
6. Proprietary Rights; Feedback. Customer acknowledges and agrees that Supplier and its licensors own all right, title, and interest, including without limitation any and all patents, copyrights, and trade secrets, embodied in the Products and Documentation. All feedback, ideas, suggestions, modifications and the like that Customer provides to Supplier under this Agreement (the “Supportive Information”) will belong to Supplier, but Customer may use the Supportive Information. Customer hereby assigns to Supplier all right, title and interest in and to the Supportive Information and the related intellectual property rights.
7. General. This Agreement will be governed and construed under the laws of the State of Texas, excluding its conflicts of law principals. Any action filed by either party arising or relating to this Agreement shall be brought in Travis County, Texas, and Customer irrevocably consents to and waives any objection to jurisdiction and venue in the state and federal courts located in Travis County, Texas. The parties to this Agreement are independent contractors. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. Except for Customer’s payment obligations, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, war, riots, orders of government, strikes, failure of the Internet or shortages of materials. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by duly authorized representatives of the parties. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy. Customer will comply with all applicable laws in performing this Agreement and in connection with the Products.