Terms and Conditions
The Terms and conditions included in this document constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter hereof, including the terms and conditions set forth on any purchase order issued by Buyer. All sales by Arcade Inc. or Croc Charms Club (the “Seller”) are expressly conditioned by and under these terms and conditions (the “Terms”). These Terms may in some instances differ with those affixed to Buyer’s purchase order or other documents, if so, any additional terms or terms conflicting with these terms will not apply and are expressly rejected unless specifically set forth in a separate written agreement between the parties. Acceptance of Buyer’s order is expressly conditioned upon Buyer’s acceptance of or assent to these Terms, which shall be established by a written acknowledgment, by implication, or by acceptance or payment for products ordered hereunder. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of these Terms. Any changes in these Terms must specifically be agreed to in writing and signed by an officer of Seller before becoming binding. Receipt by Buyer of any products sold hereunder shall be conclusively deemed acceptance of these Terms.
All shipments are made F.O.B. Seller’s shipping point unless otherwise specified. Buyer will determine any export license requirements, obtain any export license or other official authorization, and carry out any customs formalities for the export of the goods. Buyer assumes all risk of loss in shipping and all liability for loss or damage, whether direct, indirect, consequential or otherwise, due to delays once the products have been delivered to the carrier. Title to products and risk of loss pass to Buyer upon shipment from the Seller’s warehouse or agent. Buyer agrees to purchase any and all insurance it deems necessary to indemnify it against any loss in shipping.
Seller shall not be responsible for loss, damage, delay or failure with respect to the products if due to or arising from shortage of raw materials, fires, labour troubles of any kind, accidents, breakdown of machinery, government acts of any kind, failure of manufacturers, subcontractors or suppliers to deliver materials or supplies or to provide services as agreed or contemplated by past dealings, transportation difficulties of any kind, acts of God, acts of Buyer or anything reasonably beyond Seller’s control, whether or not presently occurring or contemplated by either party. Seller shall not be liable for damages, general, consequential or otherwise, or for failure to give notice of any delay until it shall have such additional time within which to deliver the products as may be reasonably necessary under the circumstances and shall have the right to apportion its inventory among its customers in such a manner as it considers acceptable. Seller shall also have the right to deliver the products in installments.
4. Limited Warranty and Limitations
Products distributed by Seller are warranted by the third party manufacturer or pursuant to the terms of the warranty included in the packaging, for products manufactured by Seller, for a period as defined by the third party manufacturer or in such documentation included with such products. Seller assigns to the Buyer those warranties and only those warranties extended by such third party manufacturers or vendors for non-Seller branded products and provides only those warranties included in the packaging for Seller manufactured products. Seller does not itself warrant any products other than those it manufactures (and then solely pursuant to the terms and subject to the limitations set forth in the documentation included with such products) and sells all other products only on an as is basis.
THERE ARE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. IN NO CASE SHALL SELLER BE LIABLE TO ANYONE FOR ANY PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR BREACH OF THIS OR ANY OTHER REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, OR UPON ANY OTHER BASIS OF LIABILITY WHATSOEVER. Seller does not represent that the products it manufactures or sells may not be compromised or circumvented; that the products will prevent any personal injury or property loss by burglary, robbery, fire or otherwise, or that the products will in all cases provide adequate warning or protection. Buyer understands and will cause its customers to understand that a properly installed and maintained alarm may only reduce the risk of a burglary, robbery or fire without warning, but it is not insurance or a guarantee that such will not occur or will not cause or lead to personal injury or property loss. CONSEQUENTLY, SELLER SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER LOSS BASED ON ANY CLAIM AT ALL INCLUDING A CLAIM THE PRODUCT FAILED TO GIVE WARNING. However, if seller is held liable whether directly or indirectly for any loss or damage with respect to the products it sells, regardless of cause or origin, its maximum liability shall not in any case exceed the purchase price of the product, which shall be fixed as liquidated damages and not as a penalty, and shall be the complete and exclusive remedy against the Seller.
Limitation on Liability to Buyer’s Customers. Buyer agrees to limit liability to its customers to the fullest extent permitted by law. Buyer acknowledges that Seller shall only be deemed to give consumers of its products such statutory warranties as may be required by law and at no time shall Buyer represent to its customers and/or users of the Seller’s products that Seller provides any additional warranties (except as may be specifically provided herein with respect to products manufactured by Seller). By accepting the products, to the fullest extent permitted by law, Buyer assumes all liability for, and agrees to indemnify and hold Seller harmless against and defend Seller from, any and all suits, claims, demands, causes of action and judgments relating to damages, whether for personal injury or to personal property, suffered by any person, firm, corporation or business association, including but not limited to, Buyer’s customers and/or users of the products because of any failure of the goods to detect and/or warn of the danger for which the goods were designed or any other failure of the products whether or not such damages are caused or contributed to by the sole or joint concurring negligence of Seller.
Return for Credit Unused Product. At its option, Seller may accept as a return for credit unused product in its unopened original package and in a condition that could be sold as new providing the product was purchased from Seller no more than thirty (30) days prior to the date of return. Buyer must provide proof of purchase within the preceding thirty (30) days and method of payment. Buyer shall be responsible for any freight on returns and returns and product must be unopened and must include all original instructions and packaging within the original box.
Special order items are, at Seller’s option, non-returnable or may be returned and subject to a restocking fee. For non-returnable items, no return privileges apply.
Bad out of box:
Solely as a convenience to Buyer, and in Seller’s sole discretion, any product that is initially defective (bad-out-of-box) may be exchanged for a new product at no charge to Buyer in accordance with the manufacturer’s policy that is being passed along to Buyer by Seller or, at Seller’s option, be returned for credit in accordance with the manufacturer’s policy.
Manufacturers’ policies may vary. Buyer must provide a copy of the invoice number for the product being returned. Seller will, at Buyer’s cost for freight, take the product and send it to the manufacturer. If the manufacturer determines that the product is not initially defective (bad-out-of-box) or not otherwise new or its inability to function properly is a result of user damage or abuse, Buyer shall pay Seller all charges relating to the product as well as the replacement product previously given or, if applicable, have any credit given to Buyer reversed.