c&e sport, llc standard Terms and Conditions

These C&E Sport, LLC Standard Terms and Conditions (the “Terms”) set forth the terms on which C&E Sport, LLC (“C&E”) will sell product (“Product”) to the purchaser (“Purchaser”) as further described on a separate written purchase order, electronic data interchange (“EDI”) order, or other written orders (each a “Purchase Order”).  C&E and Purchaser are referred to herein individually as a “party” and collectively as “parties”.  By executing and delivering the Purchase Order to C&E or by submitting a Purchase Order to C&E for acceptance, Purchaser agrees to these Terms.  C&E and Purchaser agree and acknowledge as follows:
1.    Acceptance.
(a)    At C&E’s discretion, Purchase Orders may either be submitted by C&E to Purchaser or be submitted by Purchaser to C&E.  In either case, a Purchase Order will only be binding if accepted by C&E as provided in Section 1(b) below.  Each Purchase Order shall specify, at a minimum: (i) the quantity of Product to be delivered; (ii) the price for such Product; (iii) the delivery date for such Product; and (iv) the country of destination for such Product.  If the terms stated in the Purchase Order are inconsistent with the provisions of these Terms, the terms of the Purchase Order shall govern and control.
(b)    C&E will use commercially reasonable efforts to notify Purchaser within one (1) business day of receipt of a proposed Purchase Order from Purchaser if the requested Product is not available for delivery as requested.  Acceptance of the Purchase Order and these Terms will be made upon the earlier of (i) written acceptance by Purchaser of the Purchase Order proposed by C&E; (ii) written approval of the Purchase Order proposed by Purchaser by C&E; or (iii) delivery by C&E of the Product specified in the Purchase Order.
(c)    No other terms and conditions shall apply to the Purchase Order that are in addition to or different than these Terms unless agreed in writing by both parties.  Modifications to the original Purchase Order will not be binding unless signed by both parties.  Any additional or different terms and conditions from Purchaser are hereby objected to by C&E.  Delivery of the Product or other performance by C&E with respect to the Product shall not constitute C&E's acceptance of any additional or different terms and conditions from Purchaser.
2.    Pricing and Quantity. C&E shall sell, and Purchaser shall purchase, the Product in the quantities and at the prices specified in the Purchase Order.
3.    Export and Import Requirements.  Purchaser shall be solely responsible for satisfying all requirements applicable to the export of the Product from the United States and import into the country of destination specified on the Purchase Order (the “Territory”).
4.    Payment; Credit.
(a)    Unless otherwise specified in the Purchase Order, payment for Product sold hereunder shall be made by Purchaser without reduction or  set-off within thirty (30) days from the date of the applicable invoice, in immediately available funds in the manner designated on the invoice.  All payments shall be in United States funds and governmental taxes imposed by the Territory on exportation of funds, if any, shall be paid by Purchaser.  
(b)    Interest shall automatically accrue and be immediately due and payable by Purchaser on all overdue payments at the rate of (i) two percent (2%) per month compounded annually (twenty-four percent (24%) per annum nominal) or (ii) the highest rate allowed by law, whichever is less.  If the Purchaser fails to pay on the due date any amount which is payable to C&E, C&E may suspend all deliveries of Product until all outstanding amounts have been received by C&E from the Purchaser.
(c)    To the extent applicable, all extensions of credit to Purchaser and all orders accepted by C&E providing for extension of credit to Purchaser are subject to C&E's reserved right, at its sole discretion, to disapprove or revoke such extension of credit at any time prior to shipment of Product.  Nothing in these Terms shall be construed as an obligation or commitment of C&E to extend credit terms to Purchaser at any time.
5.    Delivery Terms.  Unless otherwise specified in the Purchase Order, Product shall be delivered to Purchaser, and risk of loss as to such Product shall pass to Purchaser "FOB C&E’s warehouse” Incoterms.   All delivery terms shall be interpreted in accordance with INCOTERMS 2000 of the International Chamber of Commerce, as may be amended from time to time, except that in the event of any conflict with these Terms, these Terms shall govern and control.
6.    Inspection/Claims. Purchaser shall conduct a full inspection of the Product promptly after delivery thereof and will immediately give C&E written notice of any defect, damage or shortage in quantity of delivered Product, including any claimed non-conformance with the Purchase Order.  Any such claims shall be made in writing and C&E shall be given an opportunity to inspect the alleged defect or variance.  Claims of any Product defects which are or should have been reasonably disclosed by such inspection, including any damage or shortage in quantity, must be presented to C&E no later than twenty-one (21) days after delivery of the Product to Purchaser.  All other claims for Product defects or damage must be presented to C&E within one (1) year from date of delivery.  In addition, substantiating evidence of any such claim by Purchaser must be made available to C&E within the applicable claims period provided for herein. Failure of Purchaser to notify C&E of such claim within such above listed periods shall operate as a waiver of any and all claims by Purchaser.  C&E shall not be responsible for any Product defects or damage to the extent caused by the acts or omissions of Purchaser or Purchaser’s representatives or agents.
7.    Limited Warranty/Remedy.  Subject to the claims limitations set forth in Section 6 above, C&E hereby warrants that the Product will, at the time of delivery, equal or exceed C&E’s manufacturing specifications (“Specifications”) in effect at such time and will be free and clear of any and all liens, restrictions, security interests and encumbrances.  C&E reserves the right to maintain as confidential some or all of the Specifications for competitive and business reasons.  C&E's sole obligation in the event of a breach of the warranties set forth in this Section 7 or with respect to any other claim properly and timely presented to C&E as provided for herein will be, at C&E's option, to either (a) replace the non-conforming, defective or damaged Product with additional or substitute Product or (b) give Purchaser a credit for the cost of such Product against Purchaser's next order. The warranties and remedies set forth herein are intended solely for the benefit of Purchaser and all claims must be made by Purchaser.  THE WARRANTIES AND REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, EXPRESS OR IMPLIED, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY C&E, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE.
8.    Limitation of Remedies and Damages.  For all purposes hereunder, C&E shall in no event be liable to Purchaser (or its subCONTRACTORS or agents) for any indirect, special, incidental, or consequential losses or damages resulting from any breach of c&e’s obligations, agreements, representations or warranties under the purchase order or these Terms.  IN NO EVENT SHALL C&E'S LIABILITY FOR ANY DAMAGES ARISING OUT OF THE SALE OF PRODUCT HEREUNDER, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, EXCEED THE AMOUNT THAT C&E HAS BEEN PAID FOR THE PARTICULAR DELIVERY OF PRODUCT WITH RESPECT TO WHICH A CLAIM IS MADE.
9.    Confidentiality. Purchaser acknowledges that C&E may from time to time transmit information regarding the Product to Purchaser which is of a confidential and proprietary nature, including, but not limited to, Specifications, price lists, drawings and strategies ("Confidential Information").  Purchaser agrees not to disclose or allow to be disclosed, other than to Purchaser's authorized personnel, any Confidential Information, except with the express prior written consent of C&E, at C&E’s sole and absolute discretion, or as otherwise required under applicable laws.  If Purchaser is required to disclose Confidential Information under applicable laws, Purchaser shall give C&E timely written notice and shall cooperate with C&E in C&E’s efforts to secure a protective order to limit disclosure of such Confidential Information.  Purchaser further agrees not to analyze or to attempt to determine the constituent components of the Product for testing or for other purposes.  Upon request by C&E, Purchaser shall cause its employees, subcontractors and agents that may have access to such Confidential Information to sign agreements restricting the disclosure and use of such information.  Upon request by C&E, Purchaser shall return all Confidential Information and any copies thereof to C&E and shall thereafter not make use of any such Confidential Information either for its own business or in connection with the business of others.
10.    Sales Outside Territory. Purchaser shall not sell, or permit to be sold, outside of the Territory, any Product which it purchases from C&E unless agreed in writing by C&E or required by applicable law.  Purchaser hereby acknowledges that sales of Product outside the Territory by Purchaser or its subcontractors or sales agents may result in substantial damages to C&E.
11.    Expenses and Taxes.  Purchaser shall be responsible for and agrees to indemnify and hold C&E harmless from and against the payment of any fees and taxes arising out of or incidental to the business of Purchaser, including, but not limited to, excise, sales, municipal taxes and income taxes, workers' compensation, unemployment insurance and social security taxes which may be levied as the result of the employment of others, or the sale of the Product or other goods, by Purchaser.
12.    Compliance With Laws. Purchaser shall, at its sole cost, (i) comply with all laws, rules, directives, regulations, assessments, filing requirements and judgments of the Territory applicable to the purchase, import, marketing, sale and/or use of the Product within the Territory, and (ii) procure and maintain all approvals, licenses, permissions, registrations, notifications and permits necessary to the purchase, import, marketing, sale and/or use of the Product in the Territory.  Purchaser shall not take any action which will cause C&E to be in violation of any law, rule or regulation applicable in any country having jurisdiction over C&E, including, but not limited to, the laws regarding environmental protection, workplace health and safety and product labeling, the Corruption of Foreign Public Officials Act, the U.S. Foreign Corrupt Practices Act, the U.S. Export Control laws or the U.S. Anti-Boycott laws.  Purchaser shall promptly notify C&E of any changes in any laws or regulations of the Territory or any political subdivision thereof which would or might adversely affect the import, marketing, promotion, sales, services, maintenance and/or use of the Product in the Territory or any political subdivision thereof.  Purchaser shall not engage in any unfair trade practices or make any false or misleading statements or representations in advertising, printed material or otherwise with respect to any of the Product.
13.    Intellectual Property.  Purchaser acknowledges that C&E is the owner or a licensed user of the trademarks used on or in connection with the Product (the “Trademarks”), certain of which are owned by Tapout, LLC.  Purchaser acknowledges C&E’s and Tapout, LLC’s rights to the Trademarks, and to any other trademarks, trade names, copyrights and label designs which may at any time be used upon or in connection with the promotion, advertisement, or sale of the Product (collectively, “Proprietary Rights”).  Purchaser shall not, and shall not permit any third party to, at any time (a) assert or maintain or attempt to assert or maintain in any country or territory whatsoever, any right, title or interest by registration, patent, copyright, or otherwise in or to the Proprietary Rights or to trademarks or other intellectual property confusingly similar to the Trademarks or Proprietary Rights, (b) transfer or attempt to transfer any right, title or interest in or to the Proprietary Rights, (c) utilize any of the Proprietary Rights as part of its business name or designation or as a domain name, (d) utilize any of the Proprietary Rights for any products or services not originating from C&E, (e) remove or alter any Proprietary Rights or trademarks which are affixed to the Product nor affix any additional trademarks or trade designations to any Product bearing the Proprietary Rights, or (f) otherwise perform any act which might adversely affect the validity of any Proprietary Rights, patents, copyrights or other intellectual property rights of C&E or Tapout, LLC.
Purchaser shall have no right to prosecute any claim against any alleged infringer of the Proprietary Rights and shall have no right to settle or compromise any claim against such an infringer.  Purchaser agrees to cooperate with C&E and Tapout, LLC in connection with the prosecution of claims which may be brought by C&E or Tapout, LLC against any such alleged infringer.  Nothing contained in these Terms shall be construed to give Purchaser any right, claim or cause of action against C&E or Tapout, LLC in the event of C&E’s or Tapout, LLC’s failure or inability to prevent the use of the Proprietary Rights by third parties.
14.    Force Majeure.  Neither party shall be held liable for failure to comply with any of the terms of the Purchase Order or these Terms, in whole or in part, caused directly or indirectly by, or in consequence of, fire, storm, flood, war, acts of terror, rebellion, insurrection, riot, civil commotion, strike, differences with workers or others, failure of carriers to transport or furnish facilities for transportation, perils of navigation, impairment of suppliers, manufacture, transportation or distribution, or a shut down or temporary closure of C&E’s manufacturing or storage facilities for any reason whatsoever, or any unsafe condition of the loading/unloading facilities at C&E’s manufacturing or storage facilities, or the inability for any reason to obtain materials used in the manufacture of Product, governmental or other authority whether pretended or real, or by any cause whatsoever beyond the control of either party, except financial, whether similar to or dissimilar from the causes enumerated herein, provided however, that nothing herein contained shall relieve Purchaser of the obligation to pay for Product sold to Purchaser. If such force majeure event occurs, and upon reasonable notice to the other party, the obligations of the party affected by the force majeure event shall be suspended for such time as shall be directly attributable to such force majeure event.  In the event that C&E is excused from carrying out its obligations or is restricted in its ability to supply Purchaser and other purchasers by virtue of the provisions of this Section 14, C&E may apportion supply among orders received or anticipated from Purchaser and from other purchasers in such just and equitable manner as C&E may determine, without obligation on C&E’s part to supplement its supply at such place or to change its supply point for Purchaser or any other purchaser.
15.    Indemnification. Purchaser shall indemnify, defend and hold harmless C&E and its directors, officers, employees, agents and representatives (collectively, the "C&E Indemnified Parties") from and against any and all claims, demands, losses, penalties, damages, expenses, costs, proceedings, judgments, and liabilities (including, without limitation, amounts paid in settlement, attorneys' fees and court costs) originating, sustained or incurred in connection with (a) Purchaser's sale, use or distribution of the Product  and for all claims or demands for damages to property or for injury, illness, or death of persons directly or indirectly resulting from the acts or omissions of Purchaser, its subcontractors, representatives, agents or employees in selling, using or distributing the Product, except to the extent caused by the willful misconduct, fraud or negligence of the C&E Indemnified Parties, and (b) any default in the observance, performance or breach of any representation, warranty, covenant or agreement made by Purchaser, or required to be performed, observed or kept by Purchaser, under the Purchase Order or these Terms.
16.    Governing Law; Dispute Resolution.  Any dispute, controversy or claim arising out of or relating to the Purchase Order or these Terms, or the breach, termination or invalidity thereof, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules.  The arbitration shall be held in Omaha, Nebraska, USA before a single arbitrator and shall commence within fifteen (15) days of the appointment of the arbitrator by the AAA.  The language of the arbitration shall be English and the arbitrator shall be fluent in English.  The determination of the arbitrator shall be final and binding and judgment on the award of the arbitrator may be entered in any court having jurisdiction thereof.  The laws of the State of Nebraska, USA shall govern the Purchase Order and these Terms and their enforcement.
17.    Assignment. The rights and obligations of Purchaser under the Purchase Order and these Terms are not assignable without the written consent of C&E.  Subject to the foregoing, the Purchase Order and these Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
18.    Independent Contractors. The relationship between C&E and Purchaser is that of independent contractors, and in no event shall Purchaser be deemed to be an agent or employee of C&E nor be deemed to have entered into a partnership or joint venture with C&E by reason of the terms of the Purchase Order or these Terms.  Purchaser shall have no authority to create or incur any obligation on behalf of C&E and shall not make any representation express or implied that it has such authority.  C&E shall in no event be responsible in any way for any debts, contracts, or obligations incurred, made or entered into by or on behalf of Purchaser.  
19.    Entire Agreement/Severability/Waiver.  These Terms, any Purchase Orders between the parties, and the Distribution Agreement between C&E and the Purchaser, if any (the “Distribution Agreement”) constitute the entire agreement between the parties and supersede all prior agreements, understandings, warranties and representations, express or implied, written or oral between the parties.  Any provision of the Purchase Order or these Terms prohibited by law or otherwise held invalid or unenforceable by a court of competent jurisdiction shall be ineffective only to the extent of such prohibition or invalidity, shall be deemed modified to the extent necessary to avoid such invalidity and shall conform to the parties’ intent hereunder, and shall not invalidate or otherwise render ineffective any other provision of the Purchase Order or these Terms.  No failure of either party to require the other party’s strict performance of any provision of the Purchase Order or these Terms, and no failure to enforce any provision of the Purchase Order or these Terms at any time, shall be deemed a waiver of such provision, nor shall it affect, limit, or waive either party’s right hereafter to enforce and compel strict compliance with each and every provision of the Purchase Order or these Terms.