TERMS AND CONDITIONS OF SALE - OLIVER THOMAS
Last Updated: April 3, 2022
THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS OF SALE OF OLIVER THOMAS PRODUCTS. AMONG OTHER PROVISIONS, THIS AGREEMENT INCLUDES TERMS AND CONDITIONS RELATING TO MINIMUM PURCHASE REQUIREMENTS, REQUIREMENTS TO INSPECT GOODS WITHIN FIVE (5) DAYS OF RECEIPT, PROHIBITIONS OF SELLING OLIVER THOMAS PRODUCTS OUTSIDE OF AUTHORIZED LOCATIONS, RESTRICTIONS ON USE OF OLIVER THOMAS’ TRADEMARKS, AND A MANDATORY ARBITRATION PROVISION FOR RESOLVING DISPUTES AND A JURY TRIAL WAIVER.
BUYER’S PLACEMENT OF AN ORDER SHALL CONSTITUTE BUYER’S ACCEPTANCE AND AGREEMENT TO THE TERMS AND CONDITIONS HEREIN.
OLIVER THOMAS MAY MODIFY THIS AGREEMENT FROM TIME TO TIME IN ITS SOLE DISCRETION. IF THE UPDATED TERMS ARE MADE AVAILABLE TO BUYER AT THE TIME BUYER PLACES A SUBSEQUENT ORDER, BUYER’S PLACEMENT OF SUCH SUBSEQUENT ORDER WILL BE DEEMED ACCEPTANCE OF THE UPDATED TERMS. IF BUYER OBJECTS TO THE UPDATED TERMS, BUYER’S SOLE AND EXCLUSIVE REMEDY WILL BE TO TERMINATE THIS AGREEMENT AND DISCONTINUE ALL SALES OF OLIVER THOMAS PRODUCTS.
Any offer to sell by Oliver Thomas (a division of Black Diamond Group, Inc.) (“Seller”), as well as any acceptance by Seller of an order from a buyer of Seller’s products (“Buyer”) is expressly made conditional upon Buyer’s assent to these Terms and Conditions of Sale, as updated by Seller from time to time (the “Agreement”). Buyer’s placement of an order for any Seller product will be conclusive evidence of such assent. This Agreement, as amended by Seller from time to time in accordance with the terms herein, constitutes the entire agreement and understanding of Seller and Buyer. Seller hereby objects to any term(s) or condition(s) set forth in any communication, printed or otherwise, from Buyer to Seller, or which otherwise would be deemed established by any course of dealing or custom in the trade, which are in any way different from, inconsistent with, or in addition to the terms and conditions set forth herein. Such different, additional, or inconsistent terms will not become a part of the contract between Seller and Buyer and will not be binding upon Seller. To the extent that this document may constitute an offer, this offer expressly limits acceptance to the terms and conditions set forth herein. To the extent that this document may constitute an acceptance, this acceptance is expressly conditioned upon Buyer’s assent to the terms and conditions set forth herein. If Buyer objects to any term or condition set forth herein, Buyer should not place or complete its order. Seller’s failure to object to terms contained in any communication from Buyer will not be a waiver of the terms set forth herein. Buyer shall not condition any acceptance of delivery upon the abrogation or modification of any of the terms and conditions set forth herein and any such condition shall be null and void.
- ACCEPTANCE OF ORDERS - Seller may accept or reject any order, in whole or in part. Seller will not be deemed to have accepted any order (or any portion thereof) from Buyer for any products until (i) such order is approved by an authorized person at Seller’s home office, located at 300 Trade Center Drive, Suite 5550, Woburn, MA 01801, which approval may be via Seller’s wholesale site, located at www.TheOliverThomasWholesale.com (the “Seller’s Wholesale Site”) or via email from Seller’s Customer Service Department, and (ii) such products are delivered by Seller to the carrier for delivery to Buyer.
- PRICE/DELIVERY TERMS - Unless otherwise stated on Seller’s order acceptance or invoice, price and delivery terms are F.O.B. Memphis, TN (Seller’s warehouse in Memphis, TN) or elsewhere in the U.S. as designated by Seller. All prices are subject to change without notice, and orders will be billed at prices prevailing at the time Seller accepts Buyer’s written order. Seller may make partial shipments of products to Buyer, in which case each shipment will constitute a separate sale, and partial shipment of an order will not bind Seller to deliver the remainder of the order at the same prices. Prices do not include any tax or other government charge or assessment upon the sale, shipment, production, or use of the products ordered or sold hereunder. Buyer will be solely responsible for, and will (upon demand) pay to Seller, any such tax, charge, or assessment, other than any such tax on or measured by Seller’s income. Unless otherwise agreed by Seller, Seller will use Seller’s standard methods for packaging and shipping. In the absence of additional specific shipping instructions, Seller will ship according to its judgment. Seller will not assume the responsibility of any transportation charge. Seller will attempt to meet delivery schedules requested by Buyer; however, all delivery indications are estimates only, and Seller will not assume any liability, consequential or otherwise, resulting from failure to deliver product in accordance with any indicated delivery schedule.
- QUANTITY - If Seller delivers to Buyer a quantity of productsof up to five percent (5%) more or less than the quantity set forth on the applicable order, Buyer shall not be entitled to object to or reject the products or any portion of them by reason of the surplus or shortfall and shall pay for such products adjusted pro-rata.
- MINIMUM PURCHASE REQUIREMENTS – Buyer acknowledges and agrees that Buyer shall be required to meet the minimum purchase requirements, including per order minimum requirements and annual minimums, made available to Buyer on Seller’s Wholesale Site or otherwise provided to Buyer. Current Minimums: New Account Initial - $1200.00, Reorders - $550.00, 12 month minimum spend of $1650 is required to remain an active Wholesaler in good standing. In the event Buyer does not meet any such minimum purchase requirement, Seller may terminate this Agreement upon notice to Buyer.
- PAYMENT – Seller may invoice Buyer at any time upon delivery to carrier. Unless otherwise agreed by Seller, Buyer shall pay the full amount for ordered products upon placing the order. If products are purchased outside of Seller’s Wholesale Website, payment shall be due promptly after Seller has provided payment instructions. All payments overdue for greater than thirty (30) days may be subject to an interest charge calculated at the lower of five percent (5%) per annum or the highest rate allowed by applicable law. Buyer shall pay Seller $25.00 as a handling charge for any payment that is returned by Buyer’s bank for insufficient funds. Whenever Seller, in good faith, deems itself insecure, Seller may cancel any outstanding order with Buyer, and take any other steps necessary or desirable to secure Seller fully with respect to Buyer’s payment for products furnished or to be furnished by Seller. Buyer shall reimburse Seller for all costs incurred, including all reasonable attorneys’ fees, in connection with collecting any overdue payment. Buyer shall not, and acknowledges that it will have no right to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Seller, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller, whether relating to Seller's breach or non-performance of this Agreement or otherwise.
- INSPECTION/ACCEPTANCE/RETURN – Buyer shall carefully inspect all products and verify contents against packing slips within five (5) days of receipt of the respective product (the “Inspection Period”). Buyer must report any alleged error, shortage, defect, breach of warranty, or nonconformity in the products (each, a “Nonconforming Product”) to Seller within the Inspection Period. If Buyer does not report a Nonconforming Product during the Inspection Period, Buyer will be deemed to have accepted all such products and to have waived (x) the right to return such Nonconforming Products and (y) any and all claims and rights against Seller arising hereunder or by law with respect to any such Nonconforming Product. If Buyer timely notifies Seller of any Nonconforming Products, Seller will then have an opportunity to verify a claimed Nonconforming Product. If Seller verifies that such products are Nonconforming Products, Seller will, in its sole discretion, (i) replace such Nonconforming Goods, or (ii) credit or refund the price paid by Buyer for such Nonconforming Goods. Unless otherwise expressly agreed by Seller, Seller will accept returns only for Nonconforming Products and only if Buyer timely notifies Seller in accordance with the foregoing. For Nonconforming Product return requests, Buyer will direct requests to Seller’s Returns / Customer Service Department at 1-833-221-0345 or email@example.com. All products returned must include a return authorization number provided by Seller (“Return Authorization Number”) and a copy of the order, and must be returned to Seller. Depending upon the reason for return Buyer may be required to be returned to Seller’s corporate office or Memphis, TN warehouse, as indicated by Seller. The Return Authorization Number must be clearly marked on the outside of the outermost packaging (e.g., if an entire container is returned, the Return Authorization Number must be clearly marked on the outside of the container). Any product returned without a Return Authorization Number in accordance with the foregoing will be refused. Buyer will bear the risk of loss and all expenses of return in connection with any returned product. New product which is returned with Seller’s authorization will be inspected and, if determined to not be Nonconforming Products by Seller, will be subject to a twenty (20%) restocking fee. Seller will not assume responsibility for any additional handling or freight charges.
- LIMITED WARRANTY - Seller warrants that its product is free from defect in materials and workmanship at the time and place of delivery by Seller. THE WARRANTY DESCRIBED IN THIS SECTION SHALL BE IN LIEU OF, AND SELLER HEREBY DISCLAIMS, ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. All warranty claims must be made in writing to Seller in accordance with Section 6. Buyer’s remedies for warranty claims timely made are subject to Seller’s confirmation that the subject products are defective, and are exclusively limited to replacement of, or credit for, any defective product (at the option of Seller); provided, however, that Seller will only make any such replacement or credit if Buyer follows the terms and conditions set forth in Section 6. Seller’s warranty is made only to Buyer. Buyer shall not make any warranty in its resale of Seller’s products unless Buyer clearly identifies that such warranty is offered solely by Buyer and is not the responsibility of Seller.
- REDISTRIBUTION - Seller sells its product to retailers for resale to consumers only at authorized locations and, if applicable, on authorized websites. Unless previously authorized in writing by Seller, Buyer is expressly prohibited from advertising, selling, or offering to sell any Seller product from any other location, pop-up location, market, website, social media, live stream, or other medium, including any mail order, catalog, or otherwise. Unless specifically prohibited by applicable law, any sale, resale, or transshipment of Seller products from, in, to, or through any unauthorized location, third party, website, business, medium, or to anyone other than consumers located in the United States and for personal use is a violation of the Agreement. Without limiting any of the foregoing, in no event may Buyer sell or offer to sell any Seller product (i) from any third-party location, website, auction site, online market place, application, ecommerce site, or catalog site, such as eBay, Amazon, Zappos, Instagram, Facebook, SnapChat, or TikTok; or (ii) to any person or entity for the purpose of resale, or with knowledge, actual or constructive, that the products are purchased for resale. Buyer agrees and understands that Seller’s policy is for the purpose of maintaining and enhancing the image and placement of its trademarks and trade name throughout the world.
- LIMITATION OF LIABILITY - Seller assumes no liability except as expressly provided in thE Agreement. Seller’S TOTAL AGGREGATE LIABILITY TO BUYER FOR any claims ARISING FROM OR RELATED TO THE AGREEMENT IS LIMITED TO THE TOTAL AMOUNT PAID BY BUYER TO Seller DURING THE THREE (3) MONTH PERIOD PRIOR TO THE claim. IN NO EVENT WILL Seller BE LIABLE TO BUYER OR ITS CUSTOMERS FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, IN TORT, UNDER WARRANTY, OR OTHERWISE, even if the damages were foreseeable or buyer was aware of the possiblity of such damages.
- INDEMNIFICATION - Buyer shall indemnify, defend, and hold harmless Seller, its affiliates, and their respective officers, directors, employees, and agents, from and against any claims (including damages, losses, and liability associated therewith, and all expenses of defending the claim and reasonable attorneys’ fees) by any third party ARISING OUT OF OR RELATING TO ANY (A) act or omission OF Buyer, INCLUDING ANY BREACH OF this AGREEMENT OR ANY APPLICABLE LAW, RULE, OR REGULATION; or (B) warranty issued by Buyer.
- TITLE AND RISK OF LOSS – Unless Seller expressly assumes responsibility for shipment, (i) title to all Seller products will pass to Buyer when delivered to the carrier, and thereafter, except as otherwise specifically provided herein, all risk of loss and damage to any product ordered hereunder will be borne by Buyer; and (ii) Buyer will be responsible for making any and all claims for damage to or loss of any products in transit against the carrier.
- CHANGE IN OWNERSHIP OR LOCATION - Buyer will not change its legal name, jurisdiction of organization, domain name, or the location of its principal place of business or any approved location without giving Seller thirty (30) days’ prior written notice. In the event of a sale of, or a partial or total change of ownership in, Buyer or of any of Buyer’s approved locations or approved websites (if applicable), the new owner(s) must apply to Seller for approval as an authorized reseller, for each such location or website. Buyer’s new owner(s) will not be eligible to obtain Seller’s products until an authorized Seller officer approves each such application in writing. In any such event, Seller shall have the right, in its sole discretion, to immediately terminate the Agreement upon notice to Buyer.
- PRODUCT CHANGES - Seller expressly reserves the right, at any time and without notice, to discontinue the production of, or change the specifications for, any product. If there is any material change in the specifications for any products subject to an order that Seller had already accepted prior to such change and Seller is no longer able to fulfill such order with the original products, Seller will notify Buyer of the change, and Buyer may then, as its sole and exclusive remedy, elect to either (i) replace the applicable products with the updated products (if available) or (ii) cancel the order with the respect to only the applicable products and receive a refund for any amounts previously paid for such cancelled products.
- PROMOTIONAL ITEMS – If Seller provides promotional items to Buyer at no cost, any such items may not be resold.
- MINIMUM ADVERTISING PRICE POLICY – Buyer acknowledges that Seller may at any time implement a unilateral minimum advertising price policy, which will be made available to all resellers, including Buyer, on Seller’s Wholesale Website [Click HERE].
- SELLER TRADEMARKS AND COPYRIGHTS; MERCHANDISING REQUIREMENTS - Subject to the terms of this Agreement, Seller hereby grants Buyer a limited, non-exclusive, non-transferable, revocable right and license to, during the term of this Agreement, use those Seller trademarks, service marks, trade names, images, and logos (collectively, the “Seller Marks”) and any sales materials, installations, or displays that Seller provides to Buyer (“Seller-Provided Sales Materials”), each solely in connection with Buyer’s authorized sale of Seller products at approved locations and, if applicable, on approved websites to end consumers. Buyer may not use the Seller Marks outside of the Seller-Provided Materials in accordance with the foregoing for any purpose unless Buyer has obtained Seller’s prior express written approval on a case-by-case basis. Seller reserves all rights in and to all Seller Marks and Seller-Provided Sales Materials. Buyer does not receive any right to any Seller Mark or Seller-Provided Sales Material except as expressly set forth in this Agreement. Buyer shall comply with all legal prerequisites, standards, and specifications promulgated by Seller governing the proper usage and display of the Seller Marks and Seller-Provided Sales Materials, and any other instructions relating thereto, such as any requirements to use the Seller-Provided Sales Materials only in connection with certain products. Seller expressly reserves the right to prohibit, restrict, or further condition, in any way Seller may deem necessary or appropriate, the use by Buyer of any of the Seller Marks or Seller-Provided Sales Materials. Without limiting the foregoing, Buyer acknowledges and is familiar with the high standards, quality, style, and image of Seller, and Seller at all times shall conduct its activities and use the Seller Marks and Seller-Provided Sales Materials in a manner consistent with these standards, quality, style, and image. In no instance may Buyer use any Seller Marks or Seller-Provided Sales Materials in any manner that tarnishes or otherwise diminishes the value and goodwill associated therewith. Buyer’s permitted use of the Seller Marks (including in any Seller-Provided Sales Materials) shall inure to the benefit of Seller. Buyer acknowledges that Seller will use all available remedies at law and in equity to protect the Seller Marks. Buyer will immediately notify Seller if Buyer learns of any actual or potential infringement of the Seller Marks by any third party or that use of the Seller Marks may infringe the proprietary rights of any third party. Seller will in its discretion determine what, if any, action is to be taken under such circumstances; Buyer will not take any action without the prior written consent of Seller, and will provide Seller with reasonable assistance if requested to do so by Seller. Without limiting the foregoing, Buyer shall not register or use any domain name or business name containing or confusingly similar to any Seller Mark.
- CONFIDENTIAL INFORMATION - Buyer acknowledges that during the term of the Agreement, Buyer may be entrusted with Seller confidential information, including information relating to Seller’s business, operations, customers, and pricing. Buyer shall take all commercially reasonable care to avoid the disclosure and unauthorized use of Seller confidential information to any third party. Buyer shall not use any Seller confidential information for purposes other than those necessary to further the purposes of the Agreement. Buyer shall not disclose any confidential information to any third party without the prior written consent of Seller. Should Buyer be required under applicable law, rule, or regulation, or pursuant to the order of any court or governmental entity of competent jurisdiction, to disclose Seller confidential information in its possession, custody, or control, Buyer must: (a) give Buyer prior written notice of such disclosure to the extent legally permitted, and otherwise give such notice promptly; (b) use commercially reasonable efforts to provide Buyer with an opportunity to take action, if it desires, to challenge or contest such disclosure or seek a protective order; and (c) limit any such disclosure to the extent so required.
- MAINTENANCE OF SALES RECORDS - Buyer shall maintain true, correct, and complete books and records relating to its activities under the Agreement, including itemized details of all Seller products it sold (such as a POS report or other sales report with SKUs from Buyer’s ERP system). Buyer shall preserve such books and records for at least five (5) years on a rolling basis, and will permit Seller to inspect and copy such books and records upon request. Buyer will provide Seller such other information and reports as may reasonably be requested by Seller. Buyer will reimburse Seller for all reasonable costs incurred in conducting any such inspection if Seller discovers any discrepancies or unauthorized sales.
- REMEDIES FOR BUYER DEFAULT OR BREACH - Upon any breach of this Agreement by Buyer, or if Buyer becomes unable to conduct its normal business operations (including inability to meet its obligations as they mature), or if Buyer becomes the subject of any proceeding under any state or federal bankruptcy law or other law, or makes any assignment for the benefit of creditors, Seller may immediately cancel or terminate the Agreement, in whole or in part, which may result in non-shipment or cancellation of Buyer’s pending or future order(s) and termination of Buyer’s relationship with Seller, and/or inactivate Buyer’s account on Seller’s Wholesale Website. In any such event, Seller shall be entitled to recover from Buyer all of Seller’s damages (including special, indirect, consequential, and incidental damages) resulting therefrom or arising in connection therewith. All remedies available to Seller under the Agreement will be cumulative and non-exclusive, and will be in addition to all other rights and remedies provided by applicable law, except as expressly excluded under Section 9 or Section 20. Seller’s exercise or failure to exercise any remedy will not preclude Seller from exercising the same or other remedies under the Agreement.
- LIQUIDATED DAMAGES – If Buyer breaches its obligations set forth herein concerning redistribution (“Redistribution Breach”), Buyer shall pay to Seller an amount equal to two (2) times the Seller invoice price for all Seller products sold or offered for sale, directly or indirectly, through any unauthorized channel, including any unauthorized location or website (the “Liquidated Damages”). The parties intend that the Liquidated Damages constitute compensation, and not a penalty. The parties acknowledge and agree that the harm to Seller caused by a Redistribution Breach would be impossible or very difficult to accurately estimate at the time of contract, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harms that might arise from a Redistribution Breach. Buyer’s payment of the Liquidated Damages is Buyer’s sole liability and entire obligation and Seller’s exclusive remedy for any Redistribution Breach.
- EQUITABLE RELIEF - Buyer acknowledges and agrees that its breach of any provision of the Agreement may result in immediate and irreparable damage to Seller, in which event Seller shall be entitled to equitable relief by way of temporary, preliminary, and permanent injunctions, and such other and further relief as any court of competent jurisdiction may deem just and proper.
- MODIFICATIONS AND CANCELLATIONS - This Agreement may not be modified, in whole or in part, without the prior written consent of an authorized Seller officer. Seller may, in its sole discretion, treat any attempted modification, termination, or repudiation to which it does not consent in writing, as a breach of the Agreement. Buyer may not modify or cancel orders once submitted without Seller’s prior written approval. Seller may revise or supplement the terms and conditions of this Agreement in its sole discretion. If the modified terms are made available to Buyer at the time Buyer places a subsequent order, Buyer’s placement of such order will be deemed acceptance of the updated terms. If Buyer objects to the updated terms, Buyer’s sole and exclusive remedy will be to terminate this Agreement and discontinue all sales of Seller products.
- TERM / TERMINATION / RIGHT TO REPURCHASE – This Agreement will begin on the date of the first order placed by Buyer and will terminate only if terminated by either party in accordance the terms of this Agreement. In addition to any other termination rights in the Agreement, Seller may terminate the Agreement at any time without cause upon notice to Buyer. Delivery of such notice via e-mail will be considered a written and immediate form of notification. Upon termination of the Agreement by either party, with or without cause, (i) all rights and licenses granted to Buyer under the Agreement will immediately terminate; (ii) any outstanding orders will be cancelled, and Seller will refund Buyer any amounts in advance by Buyer for products not delivered under the respective cancelled order; and (iii) Buyer will promptly: (a) pay all amounts due to Seller; (b) return to Seller any confidential information and all copies thereof in Buyer’s possession, custody, or control; and (c) return to Seller and cease any and all uses of the Seller Marks, Seller-Provided Sales Materials, and all other proprietary information. Seller may, in its sole discretion, repurchase any or all of Buyer’s remaining inventory of Seller products at an amount equal to 100% of Buyer’s actual purchase price for any current-season-inventory, 90% of Buyer’s actual purchase price for any immediately-preceding-season inventory, and a price to be agreed upon for any inventory purchased prior to the immediately preceding season. If Seller elects not to repurchase Buyer’s remaining inventory, Buyer may sell-off its remaining inventory for a period not to exceed ninety (90) days.
- FORCE MAJEURE - If performance of the Agreement, including shipment of any Seller product, is delayed or prevented by any cause beyond Seller’s control, Seller shall be entitled to terminate the Agreement, delay shipment, or otherwise suspend its duty to perform for as long as the circumstances amounting to force majeure continue. In no event shall Seller be liable for any cost, loss, or damage arising out of such termination, delayed shipment, or other suspension of its duty to perform, due to a force majeure circumstance, which includes adverse weather conditions, industrial action, war, fire, accidents, delay by supplier, difficulties in transport, breakdown in machinery or plant, and shortage of materials or labor and other similar circumstances.
- WAIVER - Seller will not be deemed to have waived any provision of the Agreement, or any breach by Buyer of any provision of the Agreement, unless specifically set forth in writing and executed by an authorized Seller officer. No waiver by Seller of any provision of the Agreement, or any breach by Buyer of any provision of the Agreement, will constitute a waiver of such provision or breach on any other separate occasion.
- SEPARABILITY - The invalidity or unenforceability, in whole or in part, of any provision, term, or condition of the Agreement, will not affect in any way the validity or enforceability of the remainder of such provision, term, or condition, or any other provision, term or condition. If any of the provisions of this Agreement is held to be excessively broad or invalid, illegal, or unenforceable in any jurisdiction, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent permitted by applicable law in conformance with its original intent.
- RELATIONSHIP - Nothing in the Agreement is intended to create, and shall not be construed to create, a partnership, joint venture, franchise, or employment relationship between Seller and Buyer. The Agreement is not a franchise or business opportunity agreement. Buyer shall have no authority to, and shall not, bind Seller to any obligations, except as expressly set forth herein, or as otherwise agreed to in advance by Seller in writing.
- ASSIGNMENT - Seller may freely assign or transfer the rights and obligations under the Agreement. Buyer may not sub-license, assign, or otherwise transfer any of the rights and obligations under the Agreement to any third party without the express prior written consent of Seller, and any attempt to do so will render the Agreement immediately null and void.
- SURVIVAL - The provisions of the Agreement, which by their nature survive expiration or termination of the Agreement, including Sections 9, 10, 17, 20, 21, 29, and 30, shall survive expiration or termination of the Agreement.
- DISPUTE RESOLUTION; JURY TRIAL WAIVER - THE PARTIES AGREE THAT ALL CONTROVERSIES WHICH MAY ARISE CONCERNING THE CONSTRUCTION, PERFORMANCE, OR ALLEGED BREACH OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES SHALL BE DETERMINED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER THE EXPEDITED PROCEDURES OF ITS COMMERCIAL ARBITRATION RULES, AND ANY JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY ANY COURT HAVING JURISDICTION THEREOF. THE PLACE OF ARBITRATION SHALL BE MASSACHUSETTS UNLESS THE PARTIES MUTUALLY AGREE TO A DIFFERENT LOCATION. IN DECIDING THE DISPUTE, THE ARBITRATOR SHALL BE BOUND BY, AND SHALL FAITHFULLY APPLY, THE LAWS OF THE STATE OF MASSACHUSETTS, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES. THE ARBITRATOR IS NOT EMPOWERED UNDER ANY CIRCUMSTANCES TO AWARD PUNITIVE OR TREBLE DAMAGES, WHETHER COMMON-LAW OR STATUTORY IN SOURCE. NO ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT MAY BE COMMENCED AGAINST SELLER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION COULD REASONABLY HAVE BEEN DISCOVERED. BY ENTERING INTO THIS AGREEMENT, BUYER AND SELLER EACH EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY.
Notwithstanding anything to the contrary in the foregoing, Seller may at any time during the pendency of a dispute: (a) seek available remedies in any forum if the dispute involves confidential information or the infringement or misappropriation of intellectual property rights; (b) seek injunctive or equitable relief; or (c) make a claim for indemnification.
- REPRESENTATIONS AND WARRANTIES - Buyer represents and warrants to Seller that as of the Effective Date: (a) Buyer is duly organized, validly existing, and in good standing under applicable law; (b) Buyer has all requisite power and authority to enter into the Agreement and to carry out and perform its obligations under the terms of the Agreement; (c) the Agreement has been duly authorized, executed, and delivered by Buyer and is a valid and binding obligation of Buyer enforceable in accordance with its terms; (d) the execution, delivery, and performance of and compliance with the Agreement does not and will not conflict with, or constitute a default under, or result in the creation of, any mortgage, pledge, lien, encumbrance, or charge upon any of the properties or assets of Buyer, nor result in any violation of (i) any term of Buyer’s governing documents, (ii) any term or provision of any mortgage, indenture, contract, agreement, instrument, judgment, or decree, or (iii) any order, statute, law, rule, or regulation applicable to Buyer, the violation of which would have a material adverse effect on Buyer’s business or properties; (e) all information provided by Buyer to Seller was and remains true and correct in all respects as of the date hereof; (f) Buyer will comply with all laws, rules, and regulations in connection with its performance hereunder; and (g) except as disclosed in the Uniform Commercial Code (“UCC”) records of the UCC filing office of the state in which Buyer is organized, Buyer’s inventory is not subject to any claim, lien or encumbrance. Each of the foregoing representations and warranties is a continuing representation and warranty and shall be deemed to have been affirmed and renewed by Buyer as of each date on which Buyer places an order for any Seller product pursuant to the terms and conditions of the Agreement.
- ENTIRE AGREEMENT - This Agreement, as amended by Seller from time to time in accordance with the terms herein, constitutes the entire agreement between the parties with respect to its subject matter and cancels and supersedes any other understandings and agreements between the parties with respect to the subject matter of this Agreement, whether written or oral, including invoices, or other documents issued by either party for the purchase or sale of any products.
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