Terms & Conditions
1. Offer and Agreement
No offer or contract shall be binding upon Eleiko Sport Inc. (together with its affiliates, the “Seller”) except by issuance of Seller’s printed acceptance form. Acceptance by buyer (together with its successors and permitted assigns, the “Buyer”) of the products (the “Products”) or payment for same shall constitute unequivocal acceptance of the terms and conditions contained herein (collectively, the “Agreement”). No additional or different terms or conditions will be binding upon Seller unless specifically agreed to in a writing signed by an authorized representative of Seller. Failure of Seller to object to conditions contained in any other writing or other communication from Buyer shall not be construed as a waiver of this Agreement nor acceptance of any such other provisions. This Agreement also serves as notice of Seller’s objection to and express rejection of any terms and conditions of purchase included in Buyer’s order or other writing that are different from or additional to this Agreement. None of any past practice, industry standards, course-of-dealing or usage of trade shall constitute a modification of any term or condition contained herein, nor shall same add any term not contained herein. Article headings herein are for convenience only and are not to be considered in interpreting any of the provisions herein.
Seller reserves the right to revise and discontinue Products at any time and without prior notice. Seller will ship Products that have the same or similar functionality and performance of Products ordered, but changes, including, but not limited to, changes with regard to measurements and weight, due to technical requirements between what is shipped and what is described in specification sheets, catalogs, or the like, are possible.
3. Prices and Payment
3.1. If Products are shipped from Seller's principal place of business or from any other location within the U.S.A., the quoted price is Ex Works in accordance with the INCOTERMS in force at the time of the formation of the Agreement (“INCOTERMS”) - Seller's principal place of business or the location of shipment, as applicable, unless otherwise agreed upon in writing. If Products are shipped from outside the U.S.A., the quoted price is Ex Works (INCOTERMS) – Austin, Texas unless otherwise agreed upon in writing.
3.2. The quoted price of Products does not include duty, tariffs, taxes, freight costs, or similar charges, which shall be borne by Buyer, unless otherwise agreed upon in writing. All prices are subject to change prior to Seller’s issuance of an acknowledgment. For all prices and Products, Seller reserves the right to make adjustments due to changing market conditions, Product discontinuation or other extenuating circumstances.
3.3. Buyer shall be responsible for any insurance and shipping charges of domestic shipments of Products and Buyer shall reimburse Seller for any such charges paid by Seller, unless otherwise agreed upon in writing.
3.4. Unless otherwise specified in Seller’s acknowledgment, the terms of payment of the total invoice price for Products ordered hereunder shall be payment in advance of shipment or by irrevocable confirmed letter of credit.
3.5. Payment shall be due eight (8) days after Buyer’s receipt of Seller’s acknowledgment. Overdue amounts shall bear a delinquency charge of interest at the lower of (a) ten percent (10%) per annum; or (b) the maximum rate permitted by applicable law.
3.6. Buyer shall have no right of set-off with alleged counterclaims. Any assignment of Buyer’s counterclaims to a third party without Seller’s prior written consent shall be void.
3.7. Buyer agrees to reimburse Seller for any costs and expenses (including reasonable attorneys’ fees or costs of collection agency) in connection with the collection of any amounts owed to Seller under this Agreement.
4. Taxes and Other Charges
Buyer shall pay to Seller, in addition to the purchase price, the amount of all fees, duties, licenses, tariffs, and all sales, use, privilege, occupation, excise, or other taxes, federal, state, local or foreign, which Seller is required to pay or collect in connection with the Products or services sold to Buyer. Failure by the Seller to collect any such fees or taxes shall not affect Buyer’s obligations hereunder and Buyer shall fully defend, indemnify and hold harmless Seller with respect to such tax obligations. This Article IV shall survive the termination or expiration of this Agreement.
5. Suspension and Cancellation
If Buyer shall omit delivery instructions or shall fail to accept Delivery (defined in Section VI), as required by this Agreement, or shall fail to make any payment when it becomes due or shall commit any other breach of contract, or if Buyer shall enter into any composition or arrangement with its creditors or if any distress or execution is levied upon any goods or property of Buyer, or if Buyer shall commit any act of bankruptcy or, if a corporation, a receiver shall be appointed of the whole or any part of its undertaking or assets or if Buyer shall pass a resolution for winding up or if a court shall make an order to that effect or if Buyer shall have a receiving order made against it, then, at Seller's sole option and discretion, Seller may defer or cancel any further deliveries or services and treat this Agreement or any other agreement between Seller and Buyer as terminated, but such termination shall be without prejudice to Seller's right to any unpaid price for Products delivered or cost of work done under this Agreement and to damages for loss suffered in consequence of such termination.
6. Delivery and Risk of Loss and Governmental Licenses
6.1. Delivery of Products to a common carrier at Seller's principal place of business or at any other loading point, if so agreed to by the parties in writing, shall constitute delivery to Buyer ("Delivery"), and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall upon Delivery, shift to Buyer. If Buyer is responsible for any shipment delay, Seller's written notification to Buyer that Products ordered hereunder are ready for shipping shall constitute Delivery to Buyer, and all further risk of loss or damage as well as all costs for handling, transportation and storage shall be borne by Buyer.
6.2. Seller shall not be liable for any damages as a result of any delay or failure to deliver due to any cause beyond Seller's reasonable control, including without limitation, any act of God, act of Buyer, embargo or other governmental act, regulation or request, pandemic, currency restrictions, fire, accident, strike, slowdown, war, terrorism, riot, delay in transportation or inability to obtain necessary labor, materials or manufacturing facilities or delays in deliveries by sub-contractors or suppliers by any such circumstance as referred to above. Seller reserves the right, at any time, to substitute a Product with a product that has the same function as such Product or to cancel a Product Further, unless expressly agreed in writing by Buyer, the estimated date of delivery shall never be regarded as a deadline.
6.3. It is Buyer’s sole responsibility to pay for and to obtain any governmental or other licenses, certificates or documentation as may be required.
If Products are not shipped within thirty (30) days after notification to the Buyer that they are ready for shipping, including the Buyer’s failure to give shipping instructions, Seller may store such Products at the Buyer’s sole risk in a warehouse or other storage facility or upon Seller’s premises and the Buyer shall pay all handling, transportation and storage costs at the prevailing commercial rates upon submission of invoices therefore.
8. Limited Warranty
8.1. Subject to the provisions of this Article VIII, Seller warrants that at the time of delivery, the Products and Seller provided installation services (the “Installation Service”) will correspond with their specification and will be free from defects in material and workmanship. Unless another period is agreed in this Agreement, the limited warranty shall apply as from the date of delivery and during the time periods set out in the Warranty Schedule attached to your order confirmation.
8.2. Any claim by Buyer under the limited warranty in Article VIII, Section 1 shall be notified to Seller in writing within thirty (30) days after the defect has been discovered. Notice of a defect shall be given immediately if there is reason to believe that the defect may cause injury or damage. If Buyer fails to notify Seller in writing within the time limits set forth in this Article, Buyer shall forfeit its right to make any claim in respect of the defect.
8.3. Where a valid claim in respect of any Product or Installation Service is notified to Seller in accordance with Article VIII, Section 2, Seller shall be entitled to repair or replace the Products (or the part in question) and correct the relevant Installation Service free of charge. Seller shall be deemed to having fulfilled its obligations in respect of remedying the defect when Seller delivers to Buyer a duly repaired or replaced part or performs correction. If Seller chooses to deliver Products or parts thereof anew, the replaced Products or parts shall become the property of Seller at the moment of replacement.
8.4. The warranty period for any repaired or replaced Product or corrected Installation Service shall end at the same date as the warranty period for the original Product or Installation Service. Unless otherwise agreed, necessary transport of the Products to and from Seller in connection with the remedying of defects for which Seller is liable shall be at the risk and expense of Seller, provided that Buyer follows Seller’s instructions regarding such transport.
8.5. The limited warranty stipulated in Article VIII, Section 1 is conditional upon the Products being used under normal conditions and that the Buyer complies with the maintenance and service instructions as well as specific manuals and user guides of the Products (e.g., Seller Product Care Guideline) provided by Seller to Buyer. The limited warranty under Article VIII, Section 1 does not cover defects which are caused by:
(a) abnormal or incorrect use of the Products;
(b) incorrect or faulty repairs by Buyer or third parties designated by Buyer;
(c) the user manual, or the mounting or assembly instructions having not been adhered to;
(d) other parts than the original parts have been used in connection with the Products or the mounting or assembly;
(e) insufficient or incorrect maintenance and service;
(f) normal wear and tear; or
(g) by design, materials or working methods that have been provided or prescribed by Buyer.
8.6. If, within a reasonable time, Seller does not fulfil its obligations under Article VIII, Section 3, Buyer may by notice in writing fix a final time for completion of Seller’s obligations which shall not be less than three (3) weeks. Where the defect has not been successfully remedied within such a reasonable period of time, Buyer shall be entitled to terminate the applicable Agreement in respect of the affected Products or Installation Services and, if applicable, be entitled to a refund of payments made for the terminated part of the applicable Agreement. The termination shall be made by a notice in writing.
8.7. THE FOREGOING LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER GUARANTEES AND WARRANTIES OF QUALITY, WRITTEN, ORAL OR IMPLIED; ALL OTHER WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED.
9. Warranty Claims, Inspection and Waiver of Defects
Written notice of any alleged defect must be presented to Seller within fourteen (14) days after its discovery, and Seller must be allowed to inspect Products while they are in the alleged defective condition. Use of allegedly defective Products must be suspended until written clearance is issued by Seller for continued use.
10. Limitation of Liability
10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT OR ELSEWHERE TO THE CONTRARY, EXCEPT FOR DAMAGES FOR BODILY INJURY (INCLUDING DEATH), DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY, AND THE INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT:
(a) IN ANY ACTION UNDER OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, NEITHER PARTY, OR ITS AFFILIATE, SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY OF THE FOLLOWING EVEN IF INFORMED OF THEIR POSSIBILITY AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE: (i) THIRD PARTY CLAIMS FOR DAMAGES; (ii) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; OR (iii) LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS; AND
(b) THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY AND ITS AFFILIATES TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL ACTIONS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, SHALL IN NO CASE EXCEED THE TOTAL PRICE PAID BY BUYER FOR THE PRODUCTS SOLD BY SELLER WHICH GIVES RISE TO THE CLAIM.
10.2. Seller disclaims any liability for any claim, whether in contract or in tort, which arose more than one (1) year prior to the initiation of litigation by Buyer against Seller.
10.3. Buyer agrees to cause its customers and anybody in the chain of manufacturing supply and distribution including the end customer to be bound by limitations of liability substantially equal to those contained in this Agreement.
11. Security interest
Until all amounts due hereunder have been paid in full, Buyer hereby grants Seller a security interest in the Products sold pursuant hereto and Seller shall have all rights of a secured party under the Uniform Commercial Code including, without limitation, the right to take possession of the Products without legal process and the right to require Buyer to assemble the Products and make it available to Seller at a place reasonably convenient to both parties. Buyer hereby appoints Seller its agent, to take all such action and to execute and file all such documents and instruments (including, but not limited to, UCC-1 financing statements) as may be necessary or reasonably requested by Seller to perfect and continue Seller’s security interest hereunder.
12.1. Seller is entitled to insure Products sold hereunder against damage or loss during (a) transportation; and (b) the time shipping is delayed for reasons beyond the reasonable control of Seller, at the expense of Buyer, unless the parties have agreed otherwise. Seller, however, is not obligated to obtain insurance.
12.2. Until final payment is made Buyer shall insure such Products at its expense for the benefit of Seller against damages and loss including, but not limited to, fire and flood, and shall give written proof thereof to Seller.
13. Patents, Copyrights & Trademarks
13.1. Seller assumes no liability as to any patent or copyright infringement by virtue of the use of Products in combination with other goods or services, or the use of Products manufactured to Buyer’s specifications.
13.2. Buyer shall not use Seller’s trademarks without Seller’s prior written consent.
14. Indemnity Buyer agrees to indemnify, defend and hold harmless
14.1. Seller, its officers, directors, employees, agents and insurers of each of them, from and against any and all third party claims, demands, actions, damages, expenses, costs, claims, judgments and liabilities (including, without limitation, interest, penalties and reasonable attorneys’ fees and investigative costs) incurred by Seller, arising from, in connection with or as a consequence of
(a) any negligent, or wrongful act or omission by Buyer;
(b) Buyer’s transfer, use or sale of any Product, except to the extent that such suit or demand arises out of the failure of such Product to meet Seller’s express warranties; and/or
(c) Buyer’s possession, operation, maintenance, delivery or return of Product. Such protection shall include, without limitation, claims for personal injury or death or property damage arising out of any act or omission of Buyer or its customers.
14.2. This Article XIV shall survive the termination or expiration of this Agreement.
15. Remedies for Breach
Buyer understands and agrees that Seller will not have adequate remedy at law for the material breach or threatened breach by Buyer, or its, agents, employees, representatives or subcontractors, of the covenant set forth in Article XIII, Section 2 of this Agreement. Buyer further agrees that in the event of any such material breach or threatened breach, Seller may, in addition to (but not in substitution for) the other remedies which may be available to it either at law or in equity, file suit in the applicable court or courts in equity to enjoin the Buyer from the breach of or threatened breach of said covenants.
If at any time any one or more of the provisions of this Agreement become invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions of this Agreement shall not be in any way impaired.
17. Governing Law
This Agreement, and all the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be governed by, construed, and enforced in accordance with the law of the State of Texas excluding any conflict of laws provisions of the State of Texas which would refer to and apply the substantive laws of another jurisdiction.
Any legal suit, action or proceeding arising out of or based upon any agreements concluded pursuant to this Agreement or any of the transactions contemplated hereby or thereby, must be instituted in the federal or state courts located in or servicing Travis County, Texas. Both Seller and Buyer hereby submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party waives any defense of inconvenient forum to the maintenance of any suit, action or proceeding so brought. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER ANY AGREEMENTs CONCLUDED PURSUANT TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. Complete Agreement
This Agreement and Seller’s acceptance form constitute the complete and exclusive statement of the agreement between the parties hereto. It supersedes all prior written and oral statements, including prior representations, statements, conditions, or warranties.