PLAYTRIX, LLC TERMS AND CONDITIONS OF SALE
APPLICABLE CONTRACT PROVISIONS
These Terms and Conditions of Sale, together with any other documents which Playtrix, LLC (the "Company") has executed and specifically referenced as part of the contract with the other contracting party (the "Buyer"), shall constitute the entire agreement between the Company and Buyer regarding the purchase of goods from the Company (the "Products") and supersede all other agreements and understandings, whether written or oral, between the parties with respect to the purchase of the Products. The Buyer's acceptance of any offer submitted by the Company is expressly conditioned upon the Buyer's acceptance of these Terms and Conditions of Sale, and no other terms or conditions shall apply to the sale of Products by the Company to Buyer unless expressly agreed to by the Company in writing.
SALE OF PRODUCTS
- Description Of Goods Sold Products supplied by the Company shall be described only by the Company's quoted specifications, literature, website, and/or drawings and any required change or deviation there from may subject quoted prices to revision.
- Price The price for the Products shall be the price set forth in Company's wholesale price list or written quotation delivered to the Buyer regarding the Products. The prices quoted in the quotation are effective for thirty (30) days unless stated otherwise in the quotation. If the Buyer desires to purchase Products in quoted bulk quantities for the purpose of attaining lower unit prices, the buyer must reference the quotation number when ordering in order to receive the prices stated in the quotation.
- Quantity Prices Price differentials indicated for varying quantities of the same item result from savings in the cost of manufacture, sale, or delivery. Therefore, the Buyer must purchase in the stated quantities to receive the stated pricing.
- Shipping and Insurance and Taxes All prices for deliveries of Products are quoted FOB the Company's location. The Company shall arrange for shipment of the Products to the Buyer using the US Postal Service. The Buyer may specify the type of carrier and routing in its purchase order for large orders. If the Buyer fails to provide such shipping information, The Company will use its commercially reasonable judgement in selecting a carrier but it shall not be liable for any delays or excessive transportation charges resulting from its selection. Due to the size and weight of most shipments, the Company typically uses UPS or US Postal Service for most deliveries. All costs relating to the shipment of the Products incurred by the Company shall be added to the invoice for the Products and paid for by the Buyer.
- Sales, Use or Other Taxes The Buyer shall pay or reimburse the Company for any sales, use, excise, occupational or other tax arising directly or indirectly from this sale transaction or the performance thereof, or from the use by any person of the Products sold, which the Company may be required to pay or collect, and any legal fees or other expenses incurred by the Company in connection therewith. Depending on the Buyer's state of business, The Buyer should furnish the Company with a tax exemption or resale certificate to avoid sales taxes on the Company's invoice.
- Terms of Payment The preferred payment method is Credit Card or PayPal, using the Company's online shopping cart. If negotiated in advance, the Buyer may issue a Purchase Order with Terms of payment being net 30 days from the date of invoice. The Company may grant an open credit line up to a specified limit determined solely at the discretion of the Company. The Company may alter or revoke credit terms at any time without notice. If, in the Company's sole judgement, The Buyer's financial condition or any other circumstance causes the Company to be insecure with respect to the Buyer's performance of any obligation under a purchase order, The Company may accelerate and demand immediate payment of any amounts owed to the Company, cancel a purchase order or suspend performance under a purchase order and require full or partial payment in advance of continued performance.
- Disputed Invoices The Buyer shall pay invoices rendered by the Company covering Products not in dispute regardless of disputes relating to other invoices. The Buyer waives the right to assert offsets or counter-claims with respect to such invoices.
- Late Payment Fee/Collection Costs Any amounts not paid when due will be subject to a late payment fee computed daily at a rate equal to the lesser of one percent (1.0%) per month or the highest rate permissible under applicable usury law. In addition, the Buyer shall be liable to the Company for all costs incurred by the Company in its collection of any amounts owing by the Buyer which are not paid when due, including collection agencies' and attorneys' fees and expenses, regardless whether an actual lawsuit is commenced.
MANUFACTURER'S SUGGESTED RETAIL PRICE (MSRP)
Products or goods purchased from the company shall only be sold at the Manufacturer's Suggested Retail Price (MSRP). In the event the Buyer chooses to place the products or goods for sale at a discount, the Buyer shall not discount the products more than 15% below the MSRP. Permission for special sale events beyond the 15% discount must be requested in writing to the Company and will be typically granted on a semi-annual basis.
- Web Commerce No products or goods purchased from or produced by the Company shall be resold by or through any online auction or online store (such as eBay, Amazon, or other similar sites) without the express, written authority of the Company. If the Buyer is planning to sell products produced by the Company in an online marketplace/store, it must be owned or operated by the Buyer and listed on the Wholesale Application.
SHIPMENT AND DELIVERY TERMS
- Shipment The Company will package the Products for domestic shipment in accordance with industry standard specifications. The carrier shall be deemed to be the agent of the Buyer and the Buyer shall make all claims with respect to damage in transit against the responsible carrier.
- Title to Products, Risk of Loss Title to and all risk of loss concerning the Products shall pass to the Buyer upon delivery by the Company of the Products to the carrier for shipment to the Buyer. The Buyer's rejection of any Products shall not shift such risk until the Products are returned to the Company, freight prepaid, pursuant to the Company's written authorization.
- Delivery Schedule The delivery dates specified in this Agreement are estimates only based on prevailing conditions as of the date hereof, and the Company's failure to meet the same shall not be deemed a breach of any purchase order or other agreement with the Buyer.
- Force Majeure The Company shall not be liable to the Buyer for any delay or failure of delivery or of any other performance caused in whole or in part by any contingency beyond the Company's reasonable control, including, without limitation, acts of God, flood, fire, acts of any government or any agency or subdivision thereof, acts of terrorism, or shortage of or inability to secure labor, fuel, energy, raw materials, supplies or machinery at reasonable prices or from regular sources.
- Inspection and Acceptance The Buyer shall inspect all Products upon arrival and shall notify the Company within ten (10) days after receipt of any shortages, non conformance with the purchase order or any other failures to conform to this Agreement which are reasonably discoverable upon arrival. Any shortages and other discoverable nonconformance or other failures under this Agreement not reported within such ten (10) day period shall be forever waived by the Buyer. If a timely claim for shortage is made by the Buyer, the Company may fulfil its responsibility by either shipping the quantity necessary to make good the deficiency or, at the Company's option, crediting the Buyer with the invoice price of the deficiency.
- Cancellation or Modification of Order A purchase order cannot be cancelled or altered after the Company's acceptance, except with the Company's express written consent and at the Buyer's expense for all damages or loss incurred by the Company due to such cancellation or alteration.
- Limited Warranty The Company warrants to the Buyer that the Products will conform to the written specifications approved or provided by the Company regarding the Product, and will be free from defects in materials and workmanship, for a period of thirty (30) days after the Buyer's receipt of shipment of the Product. The Company's SOLE OBLIGATION and the Buyer's SOLE REMEDY in the event of a defect covered by this warranty will be for the Company to provide a replacement Product or, at the Company's option, to give the Buyer a credit for the purchase price paid by the Buyer for such defective Product. THESE REMEDIES ARE THE ONLY REMEDIES AVAILABLE TO BUYER OR ANY PERSON CLAIMING THROUGH BUYER FOR BREACH OF WARRANTY REGARDING THE PRODUCTS.
- Warranty Procedure In order to recover under this Limited Warranty, the Buyer must promptly contact the Company upon discovery of the defective Product during the limited warranty period. The Buyer shall return the alleged defective Product to the Company, FOB Company's plant, only upon receipt of a Return Authorization Number from the Company. Determination of any warranty claim shall be solely determined by the Company in its reasonable discretion. All freight and insurance costs for shipping replacement Product to the Buyer shall be paid by the Company. Expenses incurred by the Buyer in or replacing any defective product will not be allowed except by written permission of the Company.
- LIMITED WARRANTY EXCLUSIONS THIS LIMITED WARRANTY DOES NOT COVER ANY LOSS CAUSED BY ACCIDENTS OR CARELESS HANDLING OF THE PRODUCT. THIS LIMITED WARRANTY ALSO SHALL NOT APPLY TO ANY PRODUCT WHICH HAS BEEN DAMAGED IN TRANSIT, ABUSED, ALTERED, MODIFIED, USED IN A MANNER NOT ORIGINALLY INTENDED, OR USED IN A MANNER NOT CONSISTENT WITH THE PRODUCT INSTRUCTIONS.
- DISCLAIMERS THE LIMITED WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE.
LIMITATION OF REMEDIES
THE COMPANY SHALL HAVE NO LIABILITY TO BUYER OR ANY PERSON CLAIMING THROUGH THE BUYER FOR, AND THE BUYER HEREBY EXPRESSLY WAIVES, ALL INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY DESCRIPTION, WHETHER ARISING OUT OF WARRANTY OR OTHER CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FORESEEABLE BUSINESS LOSSES, LOSS OF PROFITS AND RELIANCE DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE COMPANY'S LIABILITY HEREUNDER FOR ANY CAUSE EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCTS.
- The Company's Remedies Cumulative The rights and remedies of the Company under these Terms and Conditions of Sale and any resulting contract between the Company and the Buyer shall be cumulative and the exercise of any one of them shall not be exclusive of any other right or remedy provided by these Terms and Conditions of Sale or allowed by law.
- ASSIGNMENT THE BUYER MAY NOT ASSIGN THIS AGREEMENT WITHOUT THE COMPANY'S PRIOR WRITTEN CONSENT.
- Modification and Waiver No purported amendment, modification or waiver of any provision hereof shall be binding unless set forth in a writing signed by an officer of the Company. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof. The failure of the Company to enforce any provision of this Agreement at any time shall not be construed to be a waiver of such provision nor of the right of the Company thereafter to enforce such provision.
- Severability If any provision hereof is held to be unenforceable by final order of any court of competent jurisdiction, such provision shall be severed here from and shall not affect the interpretation or enforceability of the remaining provisions hereof.
- Applicable Law The validity, performance and construction of these Terms and Conditions of Sale and any resulting contract between the Company and the Buyer shall be governed by the laws of the State of North Carolina, without application of its conflict of laws issues.
- Definition of Dispute Any dispute, claim or controversy arising out of or relating to these Terms and Conditions of Sale and any resulting agreement between the Company and the Buyer, including any action in tort, contract or otherwise, at equity or at law, and any claims of fraud in the inducement (a "Dispute"), shall be resolved in a manner set forth in this Section.
- Negotiations Either party may initiate negotiation proceedings by writing a letter to the other party setting forth the particulars of the Dispute, the terms of the contract that are involved and the suggested resolution of the Dispute. If the Dispute is not resolved within thirty (30) days after delivery of the initial written letter setting forth the particulars of the Dispute, either party may deliver written notice to the other party demanding submission of such Dispute to binding arbitration conducted pursuant to the provisions of this Agreement and the commercial arbitration rules of the American Arbitration Association ("AAA"), except to the extent such AAA rules are inconsistent with the provisions of this Agreement. Even though the arbitrator(s) shall apply the AAA rules, the arbitration shall not be conducted by the AAA.
- Appointment of Arbitrator(s) The case shall be submitted to a single arbitrator who shall be a retired state or federal judge or an attorney who has practiced in the area of business litigation or in the substantive area of law related to this Agreement, for at least ten (10) years. Each party shall submit a list of three (3) arbitrators to the other party within ten (10) days after the initiating party has delivered a written notice to the other party demanding arbitration of the Dispute. From the combined list, the parties shall mutually agree on the arbitrator. Should the parties be unable to agree on the choice of an arbitrator within thirty (30) days after delivery of the written notice demanding arbitration, the arbitration shall be conducted by a panel of three (3) arbitrators. Each party shall choose one arbitrator within ten (10) days after the expiration of the above thirty (30) day period and the two selected shall choose a third arbitrator within five (5) days after their appointment.
- Location/Costs The site of the arbitration shall be in the State of North Carolina. The exact location within such state shall be designated by the arbitrator(s). The non-prevailing party shall pay all expenses of the arbitration proceeding, including the expenses and fees of the parties' witnesses and legal counsel and of the arbitrator(s), unless otherwise provided in the arbitration award.
- Discovery/Interim Relief The arbitrator(s) shall allow the parties to conduct limited discovery. Either party may apply to any court having jurisdiction hereof seeking injunctive relief so as to maintain the status quo until such time as the arbitration award is rendered or the Dispute is otherwise resolved.
- Final Award The arbitrational award shall be final and binding upon the parties and may be entered and enforced at any court having jurisdiction. Each party hereby submits to personal jurisdiction of the federal courts located in the State of North Carolina, U.S.A. and consents to the entry of the arbitration award in such courts and in the appropriate courts located in any other state of a party's residence.