You must adhere to the terms and conditions for any use of the Wild Side West Inc. Site (“Site” as defined below). These terms and conditions are a legal agreement between you and the company or business you work for, and Wild Side West Inc. (“Wild Side West Inc.”) stating the terms that govern all orders from Wild Side West Inc. and your use of this Site (the “Agreement”). Please read the entire Agreement carefully.
Orders: Sections 14, 15 and 16, below, apply to all orders (whether placed through this Site, or by some other method). You agree that, by placing an order with Wild Side West Inc., you expressly accept the terms and conditions listed in sections 14, 15 and 16.
Use of the site: Sections 1 through 13 apply specifically to any use of the Site. You agree that your use of the Site or any services available on or through the Site constitutes acceptance of the terms and conditions herein. If you work for or represent a business, you represent and agree that you are authorized by that business to enter into this Agreement on behalf of that business. Wild Side West Inc. is relying on the fact that you are authorized to enter into this Agreement on behalf of that business. If at any time you do not agree to be bound by this Agreement, you must immediately stop using the Site.
Wild Side West Inc. may from time to time amend, supplement or modify the terms of this Agreement. You must check this Agreement periodically for changes. Your continued use of the Site following the posting of any amendment, supplement or modification means that you accept and agree to it/them.
1. The Site
The Site includes everything posted on or provided through pages posted at www.theWild Side West Inc..com or any other websites owned or controlled by Wild Side West Inc. including, but not limited to the following general categories:
Content: Content encompasses everything you see, hear, or otherwise receive from, on or through the Site, including but not limited to all software, marketing tools, images, graphics, photographs, works, copyright-protectable subject matter, trademarks, service marks, trade dress logos, trade names, text, documents and sounds, and all services provided through the Site.
Marketing Tools: Online marketing tools and services provided, such as software, by Wild Side West Inc. on or through the Site.
2. Use of the Site.
You may access, use or download Content for your business only as specifically permitted on the Site. Wild Side West Inc. grants you a limited, revocable, nonexclusive right to use the Marketing Tools as specifically permitted on the Site, for the purposes expressed on the Site. No other use of Content or Marketing Tools is allowed. These limited rights are granted to you as long as you:
- Agree that, once you receive a Wild Side West Inc. “Customer ID” you and/or authorized employees and agents will use your Customer ID to access the Site for your internal business purposes, and you will not allow anyone other than your authorized employees or agents to use your customer number to access the Site for these purposes.
- Make only lawful use of the Site and the content.
- Violate no rights or licenses of any third party.
- Keep unchanged all copyright and other notices.
- Protect the Content from unauthorized use, modification, reproduction, distribution or publication.
- Do not portray Wild Side West Inc., its affiliates or licensors, or their products or services, in a false, misleading, derogatory, or offensive way.
- Abide by all applicable local, state, federal, national and international laws, rules and regulations.
- Send e-mails only to recipients with whom you have a prior business relationship.
- Send no e-mails to recipients who have asked that you stop sending them e-mails.
- Do not use a false e-mail address, impersonate any person or entity, or otherwise mislead anyone as to the origin of your services or of any Content.
- Do not copy, change, distribute, translate, decompile, disassemble, reverse engineer, loan, lease or sublicense software obtained from the Site or any copy thereof.
- Do not directly or indirectly access, use or download Content for the purpose of competing with Wild Side West Inc. (e.g., scraping product data or user information).
You may not upload post, transmit, distribute or otherwise publish on or to the Site any of the following:
- Software virus or other harmful component.
- Advertising or commercial material of any kind, except as expressly authorized in advance by Wild Side West Inc.
- False, threatening, libelous, defamatory, pornographic, obscene or otherwise unlawful material.
You may not interfere with the Site or any other user’s use of the Site by, for example, overloading, flooding, mail-bombing or crashing the Site, sending spam of any kind through the site, or inserting any code or product or manipulating the Content in any way that affects any third party’s experience of the Site.
Wild Side West Inc. may, at its sole discretion, terminate your access to the Site if it believes that you have directly or indirectly violated all or portions of your obligations under this Section 2.
Wild Side West Inc. does not warrant or represent that you or other customers are permitted to use any third party marks. Any use of third party marks must comply with any restrictions imposed by the mark owner, and is done at the customer’s own risk. Wild Side West Inc. is not responsible for the conduct of any person using the Site.
4. Use by Children.
The Site is intended only for those ages 18 and older. If you are under 18, you may not register or submit personally identifiable information on, to or through the Site. Wild Side West Inc. does not collect personally identifiable information from any person Wild Side West Inc. knows to be under 18.
Links from the Site to third party sites are provided only as a convenience. You use outside links at your own risk. These links do not constitute Wild Side West Inc.’s endorsement of any third party, its site, or its goods or services. Wild Side West Inc. shall not be responsible for and hereby disclaims liability for any injury or damages you may experience by using third party materials. You may not create links to the Site that portray Wild Side West Inc. in a false or misleading light. You may not use “framing” or similar techniques to enclose any portion of the Site. Except as intentionally enabled by the Marketing Tools, you may not link to any pages other than the Wild Side West Inc. home page.
6. Image Library.
All images, photographs, pictures, designs and illustrations appearing in the Wild Side West Inc. Image Library (“Images”) are protected by copyright law and other applicable laws and regulations. Images in the Wild Side West Inc. Image Library are intended for use by Wild Side West Inc. customers only. By accessing the Wild Side West Inc. Image Library, you represent and warrant that you are a customer of Wild Side West Inc. and will at all times comply with all applicable laws, regulations, this Agreement and any other terms and conditions of use. You may not use Images in the Image Library for any purpose unrelated to your business with Wild Side West Inc.. Images are updated from time to time. You may only use Images currently appearing in the Image Library and it is your responsibility to ensure that, at all times, you use current Images. Any Images not currently found in Image Library may not be used for any purpose. Use of model or other images that would be potentially unflattering, defamatory, libelous, or otherwise unlawful is strictly prohibited.
7. Intellectual Property.
Unless otherwise noted, Wild Side West Inc. owns or has licensed all Content, and any copyright, trademark, trade dress or other intellectual property which is protected under U.S. and international laws and treaties. The Site contains various protected trademarks, service marks, trade names and trade dress owned by Wild Side West Inc.. Other trademarks used on the Site are the property of their respective owners. You may not use any Wild Side West Inc. or other trademarks as part of your company name, corporate name, trade name or domain name.
8. Disclaimers and Liability Limitations.
YOU USE THE SITE (INCLUDING WITHOUT LIMITATION THE EASYVIEW ONLINE DESIGNER, CONTENT, MARKETING TOOLS AND SOFTWARE) (COLLECTIVELY, THE “Wild Side West Inc. PROPERTIES”) SOLELY AT YOUR OWN RISK. Wild Side West Inc. PROVIDES THE Wild Side West Inc. PROPERTIES ON AN “AS-IS, WHERE-IS” BASIS, AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING BUT NOT LIMITED TO ACCURACY, COMPLETENESS, IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE TITLE, AND NONINFRINGEMENT AND ANY IMPLIED INDEMNITIES. IN NO EVENT WILL Wild Side West Inc. OR ITS LICENSORS BE LIABLE UNDER ANY THEORY FOR ANY DAMAGES RELATED TO YOUR USE OF OR INABILITY TO USE THE Wild Side West Inc. PROPERTIES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOSS OF OR DAMAGE TO PROPERTY, EVEN IF Wild Side West Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. If you are dissatisfied with the Site or any of the terms in this Agreement, your sole and exclusive remedy is to stop using the Site. Some states do not allow certain limitations on implied warranties or certain damages, so some of the above exclusions may not apply to you. You understand and agree that Wild Side West Inc. would not make the Site available “but for” your agreement to these disclaimers and liability limitations, and that Wild Side West Inc. is at all times relying on your agreement to these disclaimers and liability limitations when it provides you with access to and use of the Site.
You agree to defend, indemnify and hold harmless Wild Side West Inc. and its affiliates, officers, directors, owners, agents, employees, contractors, licensees and licensors from and against any and all actual or threatened claims, damages, costs and expenses, including all costs, expenses and reasonable attorneys’ fees (including without limitation, fees and costs incurred in a bankruptcy proceeding, whether or not a lawsuit is filed), arising from or related to your use of the Site, Marketing Tools or Software, and for your violation of any of the terms or conditions contained in this Agreement.
Your failure to comply with any of the covenants, terms or conditions in this Agreement automatically revokes your authorization, right and license to use the Site, Marketing Tools and Software, and terminates any and all rights granted to you hereunder. Various parts of this Agreement will continue in full force and effect upon termination of your rights, according to their nature, including restrictions, disclaimers, liability limitations and indemnification obligations. Upon termination, you must promptly destroy all Content and Software downloaded or obtained from this Site, as well as all copies of any Content or Software. Wild Side West Inc. may change, suspend or discontinue or restrict any Site feature at any time without prior notice.
11. Applicable Law and Dispute Resolution.
This Agreement shall be governed by, construed and enforced in accordance with the internal laws of the State of Michigan, without giving effect to principles and provisions thereof relating to conflict or choice of laws irrespective of the fact that any one of the parties is now or may become a resident of a different state. Venue for any action under this Agreement shall lie only in Oakland County, MI. The parties hereby consent to personal jurisdiction over them by the courts within Oakland County, MI. The parties waive all objection and challenge to such venue and personal jurisdiction. In the event of a dispute hereunder, the prevailing party shall be entitled to recover its costs and expenses incurred, including reasonable attorneys’ fees.
This Agreement constitutes the entire agreement between you and Wild Side West Inc. regarding access to and use of the Site and governs your use of any Software, Content or Marketing Tools, superseding and entirely replacing prior agreements (if any) between you and Wild Side West Inc. therefor. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Wild Side West Inc.’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such provision, or any other provision of this Agreement. Wild Side West Inc. will not be responsible for failures to fulfill any obligations due to causes beyond its control. Wild Side West Inc. obtains permission from other manufacturers and content owners to make their brands, logos, products and other content available to you through the Site. You agree that these owners that license their rights and content to Wild Side West Inc. for the Site are intended third-party beneficiaries under this Agreement with the right to enforce the provisions of this Agreement that directly concern their content. In the event it should be determined that any provision of this Agreement is uncertain or ambiguous, the language in all parts of this Agreement shall be in all cases construed as a whole according to its fair meaning and not strictly construed for nor against either party.
YOU HAVE READ, UNDERSTOOD AND APPROVED OF THIS AGREEMENT; YOU HAVE HAD AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL AND WITH SUCH OTHER EXPERTS OR ADVISORS AS YOU HAVE DEEMED NECESSARY IN CONNECTION WITH THIS AGREEMENT. THE FACT THAT Wild Side West Inc. MAY HAVE DRAFTED ALL OR PORTIONS OF THIS AGREEMENT SHALL HAVE NO BEARING UPON ITS INTERPRETATION OR CONSTRUCTION.
YOU UNDERSTAND AND AGREE THAT THE PROVISIONS CONTAINED HEREIN REPRESENT AN AGREED ALLOCATION OF RISK WHICH IS REFLECTED IN THE OBLIGATIONS HEREUNDER SUCH AS THE DISCLAIMER OF ALL WARRANTIES AND THE LIMITATIONS ON LIABILITY. Wild Side West Inc. COULD NOT PROVIDE THE Wild Side West Inc. PROPERTIES, OR ITS PRODUCTS OR SERVICES TO YOU AT THE CURRENT PRICING “BUT FOR” YOUR AGREEMENT TO THESE TERMS AND CONDITIONS.
Wild Side West Inc. Terms and Conditions on All Orders
13. Branded & Private Label Sales Policies.
Effective July 1, 2015
Wild Side West Inc. requires that all authorized customers (“you” or “authorized customer”) strictly adhere to its sales policies for
- all Nike Golf, Red Kap®, OGIO®, Red House®, New Era®, Eddie Bauer®, Bulwark® and Russell Outdoors™ apparel and accessories (hereinafter referred to as “Branded”), and
- all Port Authority®, Port & Company®, Sport-Tek®, CornerStone® , District®, District Made® and Precious Cargo® apparel and accessories (hereinafter referred to as “Private Label”).
The current policy for Branded and Private Label products is as follows:
- Wild Side West Inc. will sell Branded and Private Label products only to authorized customers who, in the sole discretion and judgment of Wild Side West Inc.:
- (a) do not advertise, promote, distribute, sell or market in any way that disparages, misrepresents or injures Branded or Private Label products;
- (b) do not distribute or sell products employing any illegal, deceptive, undesirable, or improper advertising, marketing or selling practice, including predatory or “loss leader” pricing, bait and switch, or negative selling practices.
- (c) are business as defined by federal law and the state and local laws where the customer resides and/or operates
- You may sell Nike Golf, Eddie Bauer, OGIO and New Era products only with embellishment. Generic, obscure and/or temporary decoration, in order to resell these products, is prohibited. Online sales of Nike Golf, Eddie Bauer, First Ascent, OGIO and New Era products may be made only from your own website or another eligible, authorized customer website. Sales on or through eBay, Amazon, Craigslist or any other direct-to-consumer, third party site are prohibited. Upon request you may be required to provide end user information including decoration specifics.
- Nike reserves the right to prohibit the addition to any Nike garment of any trademark name, design or logo of an organization, business, school or team (or for an individual or other entity that does not meet certain standards. Please contact your representative with any questions. The decoration of any Nike garment with the proprietary mark, name or logo of any professional athletic organization or collegiate institution without the prior written authorization of both the owner of such mark, name or logo and Nike is expressly prohibited. The exportation of Nike product outside of the U.S. is prohibited (including to Puerto Rico, Guam and the Virgin Islands).
- All Eddie Bauer products must have a logo containing a corporate or organization name prominently placed on the item, (ii) all Eddie Bauer products must be placed only in non-traditional retail stores, such as a corporate gift shop, company store or other nontraditional retail location of the end user, (iii) in no case may any Eddie Bauer products be sold into traditional retailers without the written approval of licensor, such as by way of example but not limited to: mass retailers (Wal Mart, K Mart and Target); Warehouse clubs (Costco, Sam’s Club and so on); better department stores (Macy’s, Dillard’s and so on); mid-tier department stores (Kohl’s, J C Penney, and Sears); Home/Hardware stores (Lowe’s, Home Depot, Ace Hardware); Home Shopping (HSN, QVC); Internet retailers (Amazon.com, Zappos.com and so on); sporting goods and outdoor retailers (Dick’s, The Sports Authority, Cabela’s and so on); or any other retailer. Eddie Bauer may withhold its approval to any traditional retailer in Eddie Bauer’s sole discretion. ANY VIOLATION OF THE FOREGOING TERMS SHALL REQUIRE YOU TO PAY Wild Side West Inc. DAMAGES IN THE AMOUNT OF THREE (3) TIMES THE PRICE YOU PAID Wild Side West Inc. FOR SUCH PROHIBITED SALES IN ADDITION TO ALL OTHER AVAILABLE REMEDIES. Eddie Bauer prohibits placing logos or emblems on Eddie Bauer products that will negatively impact the Eddie Bauer brand, including but not limited to logos or emblems of a pornographic nature, for organizations that promote illegal activities or discriminatory behavior or for competitors of Eddie Bauer identified by Eddie Bauer , including Lands End, R.E.I., LL Bean, Patagonia, The Northface, Timberland, Nautica, Mountain Hardware, Arc’teryx, Jansport, Eastpak, National Geographic, Woolrich, and Orvis. The exportation of Eddie Bauer product outside of the U.S., Puerto Rico, Canada and Mexico is prohibited.
- Red House reserves the right to prohibit the addition to any Red House product any mark, name, design or logo that does not meet the high standards of the brand. Please contact your Red House sales representative with questions.
- New Era reserves the right to prohibit the addition to any New Era product any mark, name, design or logo that does not meet the high standards of the brand. Please contact your New Era sales representative with questions. The exportation of New Era product outside of the U.S. and Canada is prohibited.
- Red Kap reserves the right to prohibit the addition to any Red Kap product any mark, name, design or logo that does not meet the high standards of the brand, including embellishment that may disparage or otherwise negatively reflect on Red Kap, or their brand image. No modification of the Red Kap logo or trademarks is permitted.
- Bulwark reserves the right to prohibit the addition to any Bulwark product any mark, name, design or logo that does not meet the high standards of the brand, including embellishment that may disparage or otherwise negatively reflect on Bulwark, or their brand image. No modification of the Bulwark logo or trademarks is permitted.
- If Wild Side West Inc. believes, in its sole judgment, that you have failed to comply with the policy or policies stated herein, it may provide you with written notice of the same. Wild Side West Inc. may, upon delivery of such written notice to you, stop selling Branded and/or Private Label products to you or terminate the relationship.
- Wild Side West Inc. requires all customers to allow Wild Side West Inc. access to their company website in the same manner allowed to the general public. Blocking Wild Side West Inc. from your company site may result in Wild Side West Inc. discontinuing sales to you.
This sales policy is not a contract, nor an offer to form a contract. This policy simply describes the circumstances under which Wild Side West Inc. may, in its sole discretion, choose to continue selling Branded and Private Label products to you.
Wild Side West Inc. representatives are strictly prohibited from discussing this sales policy or any other pricing practice with you, and from seeking or accepting any assurance of compliance with this policy. All questions regarding this Policy shall be directed, in writing, to Wild Side West Inc., Attn: CFO, 7650 Tyler Blvd, Mentor, OH 44060.
Wild Side West Inc. does not seek any comment or criticism from you about the pricing or advertising practices of any other authorized customer. Wild Side West Inc. will not, under any circumstances, discuss the business dealings of any authorized customer with any other authorized customer. Wild Side West Inc. reserves the right to change, amend, or discontinue this sales policy at any time, and no third party has any right to rely on the continued existence of this policy, or any act or omission by Wild Side West Inc. to enforce this sales policy. Wild Side West Inc. may elect not to enforce advertising price policies for high volume orders.
Wild Side West Inc. reserves the right to modify or amend these policies unilaterally, at any time or from time to time.
14. Ordering Terms & Conditions
Orders for Wild Side West Inc. goods (the “Goods”) are subject to the following terms and conditions of sale. These terms and conditions of sale shall govern the sale of Goods from Wild Side West Inc. (“Wild Side West Inc.”) to you and/or the company you are authorized to represent (“you”). Wild Side West Inc.’s performance is expressly made conditional upon your agreement to these terms and conditions of sale. Any provisions or conditions of any purchase order or other document, which are inconsistent with or in addition to these terms and conditions are hereby rejected and shall be inapplicable and not binding upon Wild Side West Inc..
- Ordering. Wild Side West Inc. shall accept your order through electronic means for web-based orders. You may not cancel an order accepted by Wild Side West Inc. (i.e., they are non-refundable), except upon the consent of Wild Side West Inc. in each instance. Wild Side West Inc. shall deliver Goods F.O.B. Wild Side West Inc.’s shipping facility; risk of loss for Goods passes to you once Goods are loaded onto the courier at Wild Side West Inc.’s facility. Wild Side West Inc. shall make commercially reasonable efforts to meet any shipment date stated on the face of any accepted order. However, you understand and agree that shipment of Goods is subject to availability, and Wild Side West Inc. EXPRESSLY DISCLAIMS LIABILITY FOR ANY FAILURE TO MEET SUCH DELIVERY DATES. Wild Side West Inc. shall have the right to deliver Goods at one time or in portions from time to time, and to invoice for those portions delivered. Payment will not be considered final until all freight charges and taxes billed to you have been paid. Wild Side West Inc. offers free freight on orders over $300.00 shipped via ground with Wild Side West Inc.’s preferred carrier within the continental United States, excluding OGIO golf bags and oversized travel bag styles 108226,108227, 109053, 413006, 413007, 413008, 413009, 413010, 417018, 421001, 611024, 611026, 711050, TG0238, TG0239 and closeout merchandise. This includes split shipments. Wild Side West Inc. may periodically offer other free freight promotions and free freight is subject to change.
- Payment. You shall purchase Goods in accordance with Wild Side West Inc.’s price list in effect at the time of the order (less other discounts, if any). Prices are exclusive of all sales or use taxes, tariffs, customs (except fees associated with original U.S. importation which Wild Side West Inc. pays), duties and other governmental charges. You shall pay or reimburse Wild Side West Inc. for any and all such charges. Late payment of any amount will be grounds for Wild Side West Inc. to discontinue performance under these terms and conditions of sale. Any amounts not paid by the due date will be subject to a finance charge at a rate equal to the lesser of 1.5% per month or the maximum rate allowed by law. However, payment of such finance charge will not excuse or cure a breach or default for late payment. Returned checks will be subject to a $40.00 per check charge. All freight is F.O.B. point of origin. You remain responsible for all shipping and handling charges including, without limitation, failure by the consignee to pay shipping charges, failure by any third party to pay shipping charges, or an incorrect or invalid shipping account number. Wild Side West Inc. accepts American Express, Visa and MasterCard (please ask your sales representative for details). Wild Side West Inc. does not accept third party credit cards.
- Pricing. All prices are subject to change without notice. Wild Side West Inc. assumes no responsibility and shall incur no liability whatsoever if price change notices are not received. In the event of new federal or state taxes or legislation affecting the costs of products or items, Wild Side West Inc. reserves the right to increase prices as it deems appropriate or necessary. Merchandise is subject to change or withdrawal, or may be temporarily or permanently out of stock. We assume no liability for delays or failure to deliver due to our inability to obtain supplies. Wild Side West Inc. has no minimum order amount; however, orders under $50.00 are subject to a $5.00 service charge.
- Backorders. Backorders can only be placed for Goods that are out of stock at all of our warehouse locations at the time that the order is placed. Warehouses cannot be specified for backorder fulfillment and all backorders will be filled as inventory is available. Only sale pricing and promotional discounts that are active at the time that the backorder is filled will be applied. Promotional “Promo” codes cannot be applied to backorders. There is no service charge for backorders and all backorders ship free freight when shipped within the Continental United States. Shipping method is at Wild Side West Inc.’s discretion and may vary by location. You will receive fulfillment notification from us as Goods are available. No backorders will be accepted for discontinued or closeout merchandise, catalogs or custom hemmed pants. Fulfillment of backorders is subject to the availability of Goods. Estimated Times of Arrival (“ETA”s) provided at the time of backorder placement are courtesy estimates only for when Goods are expected to be received by Wild Side West Inc.. We assume no liability for delays or failure to deliver due to our inability to obtain supplies.
- Returns and Cancelled Orders. It is your responsibility to check for discrepancies or defects in an order before any alterations or embellishments are made. Returns must be authorized by Wild Side West Inc. in advance. Claims for returns for defective Goods must be made in accordance with the warranties in Wild Side West Inc.’ General Terms & Conditions of Sale. Altered or embellished garments, excluding irregulars, are not returnable. Authorized returns must be accompanied by a return authorization form or number from Wild Side West Inc.. Returns without original corresponding invoice number(s) will be credited at the lowest published price. Cancelled orders or returns of unwanted merchandise must be approved in advance and may be subject to a 20% restocking fee plus applicable shipping charges. Merchandise that is not Wild Side West Inc.’s will be returned to you at your expense or disposed of by Wild Side West Inc.. Discontinued or close-out items are not returnable. All returns must be prepaid. Please contact Wild Side West Inc. Customer Service for a return authorization and shipping address.
- Export Shipments. Many Goods that have been imported into the U.S. cannot be exported to other countries. It is your responsibility to check with their freight forwarder to confirm foreign documentation requirements and verify that items to be exported will be released by customs at the final destination. Wild Side West Inc. is not responsible for providing this information or any documentation required to export goods purchased from Wild Side West Inc. or for re-importation to the U.S. The exportation of New Era outside of the U.S. and Canada is prohibited. The exportation of Nike product outside of the U.S. is prohibited (including to Puerto Rico, Guam and the Virgin Islands). The exportation of Eddie Bauer or First Ascent product outside of the U.S., Puerto Rico, Canada or Mexico is prohibited.
15. General Terms & Conditions of Sale
Orders for Wild Side West Inc. goods (the “Goods”) are subject to the following terms and conditions of sale. These terms and conditions of sale shall govern the sale of Goods from Wild Side West Inc. (“Wild Side West Inc.”) to you and/or the company you are authorized to represent (“you”). Wild Side West Inc.’s performance is expressly made conditional upon your agreement to these terms and conditions of sale. Any provisions or conditions of any purchase order or other document, which are inconsistent with or in addition to these terms and conditions, are hereby rejected and shall be inapplicable and not binding upon Wild Side West Inc.
- Warranties, Disclaimer, Limitations on Liability. Wild Side West Inc. warrants only that the Goods shall be free from material defects on the delivery date, provided, you store and handle the delivered Goods in such a manner that meets or exceeds the storage and handling procedures utilized by Wild Side West Inc..You must provide Wild Side West Inc. with written notice of any warranty claims no later than thirty (30) days after receipt of the applicable order of Goods. Failure to provide written notice within such 30-day period shall void Wild Side West Inc.’s warranties in their entirety. As Wild Side West Inc.’s sole responsibility and liability, and YOUR ONLY AND EXCLUSIVE REMEDY for any breach or breaches of such warranties, Wild Side West Inc. shall, upon written notice from you, either (at Wild Side West Inc.’s option) replace the defective portion of the Goods, or accept return thereof and refund the price paid by you for the defective portion. Any misuse, improper handling, storage, use, modification or alteration of the Goods by any third party shall void the forgoing warranty. You shall remain entirely responsible for any shipments by you or your company for purposes of returning defective products or packages hereunder to Wild Side West Inc., and all risk of loss or damage during shipment shall be born by you. Wild Side West Inc. will pay (or reimburse you) for reasonable shipping and handling charges limited to valid warranty claims.
You agree and acknowledge that any benefits derived from use or resale of the Goods will depend on factors which vary from business to business and which are not within Wild Side West Inc.’s control. YOU ARE RESPONSIBLE FOR THE SELECTION OF THE GOODS TO MEET YOUR, YOUR COMPANY’S OR ITS CUSTOMERS’ NEEDS, AND Wild Side West Inc. MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OR SALE OF THE GOODS IN YOUR BUSINESS. THE WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES MADE BY Wild Side West Inc.. Wild Side West Inc. EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE AND ANY IMPLIED INDEMNITIES.
IN NO EVENT WILL Wild Side West Inc. BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT, OR THE USE OR SALE OF GOODS BY YOU, OR ANY OTHER PARTY, OR FROM THE MANUFACTURE, SALE OR USE OF ANYTHING MADE BASED ON THE GOODS, EVEN IF Wild Side West Inc. IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR INJURIES TO CONSUMERS DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF Wild Side West Inc.. You agree that, regardless of the form of action, whether in contract or tort, including negligence, Wild Side West Inc.’s liability for damages claimed by you with respect to the Goods shall not exceed fees received by Wild Side West Inc. from you for the applicable Goods hereunder. Regardless of the form of action, whether in contract or tort, including negligence, Wild Side West Inc.’s liability for damages claimed by third parties with respect to the Goods, as between Wild Side West Inc. and you shall not exceed fees paid to Wild Side West Inc. hereunder. No action, regardless of form, arising under this Agreement (other than an action for non-payment of any purchase prices or other amounts owed by you to Wild Side West Inc.), may be brought by either party more than one (1) year after the date of the alleged breach. Wild Side West Inc. shall not be liable for any failure to perform under this Agreement where such failure is due to any cause beyond Wild Side West Inc.’s control.
You hereby release and shall defend and hold Wild Side West Inc. and its owners and agents harmless from and against any actual or threatened claims, losses, liabilities (including without limitation any punitive damages and fines), costs and expenses (including without limitation reasonable costs of litigation and attorneys’ fees) related to third party actions (a) in which it is determined that Wild Side West Inc. is not at fault; and/or (b) arising from or relating to any acts or omissions by you, your company or your customers.
- General. Our relationship is one of independent contractors. No agency, employment, partnership or joint venture shall be created by or founded upon this Agreement. You shall not make or assign, or represent to any party, by implication or otherwise, that it may make or assign, any warranty or representation by or for Wild Side West Inc., nor shall you attempt, or represent that it is entitled, to make any commitment, waiver or settlement on behalf of Wild Side West Inc. or to pledge the credit of Wild Side West Inc.. This Agreement shall be governed by and construed under the laws of the State of Michigan, without regard to any conflicts of law principles to the contrary. The parties consent to exclusive jurisdiction and venue in the federal courts sitting in Oakland County, MI, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Courts of Oakland County, MI. You agree not to object to this jurisdiction and venue, and hereby waive all defenses of lack of personal jurisdiction and forum non-conveniens. Any notice or request hereunder shall be made in writing delivered in person to an authorized officer of the respective party or mailed or transmitted by cable or telecopier, for Wild Side West Inc., to the current contact information on our website at www.theWild Side West Inc..com, and, for you, to the address Wild Side West Inc. has on file for you in your most recent approved credit application (unless changed by written notice of a different address). Your rights hereunder are personal to you and the company you represent, and may not be assigned or transferred in whole or in part by you, nor may any benefit hereunder inure to any trustee in bankruptcy, receiver, or successor, whether by operation of law or otherwise, without the prior written consent of Wild Side West Inc., and any attempted assignment or transfer without such consent shall constitute a breach hereunder and shall be void. No omission or delay on the part of either party hereto in requiring due and punctual fulfillment of the obligations of the other party shall be deemed to constitute a waiver of any of the rights of the omitting or delaying party unless such rights are waived in the particular instance in a writing delivered to the other party, and no such waiver shall apply to any other instance or obligation. If any provision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the maximum extent allowed by law and the parties’ fundamental intentions in that and other contexts, and the remainder of this Agreement shall not be affected thereby.