TERMS AND CONDITIONS OF USE AND SALE
Effective June 1, 2014
These TERMS AND CONDITIONS OF USE AND SALE (the “Terms”) set forth the provisions which govern and apply to your access to, interaction with and use of the Internet website located at http://www.impactactive.com
, and any and all Internet website(s) which are affiliated with or are now or hereafter contained within the http://www.impactactive.com
domain name (the foregoing collectively, the “Site”). These Terms also set forth the provisions which govern and apply to the offering, sale and delivery of all goods and/or services (the goods and services herein both separately and jointly referred to as the “Products”) sold on the Site, or through any other retail or commercial means, by or on behalf of IMPACTWEAR INTERNATIONAL LLLP, a Delaware limited liability limited partnership with a mailing address at 233 Richmond Street, Providence, RI 02903, and the owner and operator of the Site (“Impactwear International”). Please read these Terms carefully. If you disagree with them in any way, then do not use this Site and do not purchase any Impactwear International Products.
By using, visiting and purchasing Products on or through the Site, you represent and warrant that you are at least eighteen (18) years old and of legal age to form a binding contract, or that you are at least thirteen (13) years old and are using and accessing this Site with the permission and involvement of a parent or legal guardian. Minors under the age of thirteen (13) are not permitted to use the Site. By visiting this Site and/or purchasing any Impactwear International Products, you agree to be bound by these Terms as presently in effect, and as they may be amended from time to time in the future. Impactwear International reserves the right, in its sole discretion and without notice to you, to modify these Terms from time to time. You are deemed to accept and agree to be bound by any changes to these Terms when you visit the Site and/or Purchase any Impactwear International Products. Any changes to these Terms will not apply to Products purchased prior to the effective date of such changes. Any changes will be immediately effective for any Products purchased after the effective date of such changes. If any changes are not acceptable to you, you must immediately discontinue your use of this Site, and you may not purchase Impactwear International Products.
By purchasing any Impactwear International Products, or viewing any of the information, features, videos, images, documents, or functionality located on or in connection with the Site, you agree to be bound by these Terms, without limitation or qualification, whether you are a “Visitor” (which means that you simply browse the Site without purchasing any Products) or you are a “Purchaser” (which means that you purchase one (1) or more Impactwear International Products on the Site or by any other means whatsoever). The term “you” or “your” or “User” refers to a Visitor or a Purchaser. The term “we” or “us” or “our” refers to Impactwear International. Subject to these Terms, Impactwear International gives you the right to view and use its Site and purchase its Products.
1. Ownership. Impactwear International is the sole owner and operator of the Site, and retains in its sole discretion the option to change, alter, add, or delete any content, aspect or feature contained therein including, but not limited to, the hours of availability and equipment or software required for accessing the Site or purchasing Products listed for sale in the “Products” section of the Site. Unless otherwise noted, Impactwear International is also the sole owner of all of the information, data, content and material on the Site. Furthermore, Impactwear International may discontinue at anytime, and in its sole discretion, (i) disseminating any and all portions of data and/or information (or category or categories of information) available on the Site; or (ii) manufacturing any and all Products that may be listed as available for sale on the Site or any other Impactwear International catalog or price list that may be published in any medium from time to time. Impactwear International may also, in its sole discretion, change any method(s) of transmission of content or data on the Site, or change any transmission speeds and/or signal characteristics in relation to the foregoing. All materials are copyrighted © by Impactwear International LLLP and ALL RIGHTS ARE RESERVED. Except as expressly provided herein, Impactwear International grants no express or implied license under any patent, copyright, trademark, trade name, trade secret or any other proprietary right.
3. Quotations; Order Confirmations; Prices; Product Samples.
Price quotations listed or published by Impactwear International on the Site, through its catalog or by any other means whatsoever are not binding upon Impactwear International and merely constitute an invitation to you to purchase one (1) or more Impactwear International Products. All price quotations issued by Impactwear International are (i) revocable at anytime by Impactwear International in its sole discretion, and (ii) subject to change without notice to you. If a Purchaser places an order by phone, Impactwear International will confirm its current Product pricing at that time, and such Purchaser shall be bound at all times by these Terms.
b. Order Confirmations
Orders are not binding upon Impactwear International until accepted by Impactwear International in writing (an “Order Confirmation”). Impactwear International may deliver an Order Confirmation to a Purchaser via electronic mail, and you hereby consent to electronic delivery of the same. Impactwear International hereby reserves the right to refuse an order without any indication whatsoever of its reasons for doing so. Oral statements and agreements made by Impactwear International’s employees, officers, representatives and/or agents are not binding upon Impactwear International unless and only to the extent that such oral statements are contained with an Order Confirmation or made in a separate writing by a duly authorized representative(s) of Impactwear International. Any terms set forth in the Order Confirmation shall control in the event of a conflict between the terms set forth in the Order Confirmation and these Terms.
All Prices for Impactwear International Products are shown in the currency of the United States of America (USD) unless otherwise specified in an Order Confirmation issued to a Purchaser. Unless agreed otherwise, Impactwear International’s Product prices include standard packaging but do not include Value Added Tax (VAT) or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Products or the delivery thereof (“Taxes”). The amount of any Taxes levied in connection with the sale of Products to a Purchaser shall be for Purchaser’s account and shall be added to each invoice issued to Purchaser. If Impactwear International grants a discount with respect to a particular Product or Products, this discount relates only to the delivery specifically mentioned in the Order Confirmation. Unless the prices have been indicated as firm by Impactwear International in the Order Confirmation, Impactwear International is entitled to increase the price of Products awaiting delivery if the costs of price determining factors or Product components have been subject to an increase. These factors include, but are not limited to, raw and auxiliary materials, energy, products obtained by Impactwear International from third parties, wages, salaries, social security contributions, governmental charges, freight costs and insurance premiums. Impactwear International shall notify Purchaser of such increase. Each Product delivery shall stand as a separate transaction and any failure to deliver any one or more Products shall have no consequences for other Product deliveries
d. Product Samples and Promotional Videos
Product samples and official promotional video clips (produced by Impactwear International) which portray Impactwear International Products that may be (i) supplied to you, or (ii) available for viewing on the Site or otherwise, if any, are provided solely for information purposes and in no way imply any express or implied conditions or warranties of any kind, including as to quality, description, merchantability, suitability or fitness for any purpose whatsoever, and you shall be deemed to have satisfied yourself as to such matters prior to becoming a Purchaser of Impactwear International Products.
4. Payment Terms. Impactwear International, in its sole discretion, shall set payment and credit terms (if any) for each Purchaser of Products. In most cases, for Product purchases made through the Site, an invoice will be promptly displayed on a computer screen and presented to a Purchaser for immediate payment prior to Impactwear International effectuating shipment and delivery of any Products.
a. Credit Terms
In the event credit terms have been granted to Purchasers by Impactwear International, and unless otherwise stated by an authorized representative of Impactwear International in writing, such Purchasers shall pay all amounts due and payable to Impactwear International within thirty (30) days of receipt of any invoice for Product delivery. Late payments shall be assessed a late payment charge at the rate of one and one half percent (1½%) per month, but in no event to exceed the maximum rate allowable by law. Purchaser is liable to Impactwear International for all fees and expenses including, but not limited to, reasonable attorneys’ fees and fees Impactwear International incurs to collect, or attempt to collect, any amounts owed by Purchaser to Impactwear International. Any warranty provided herein shall be inapplicable unless and until Impactwear International has been paid the total purchase price of the Product(s) as and when due. Any failure by a Purchaser who has been granted credit terms to adhere to the payment terms in this paragraph may, at Impactwear International’s sole discretion, result in the cancellation of any warranty provided for in these Terms.
5. Changes to Orders; Returns; Cancellations. Changes or cancellations to an Order Confirmation or the return of Product(s) will be accepted at the sole discretion of Impactwear International and are valid only if confirmed in advance by Impactwear International in writing. Cancellations, returns or changes may be subject to handling charges, for which a Purchaser shall be responsible, upon Impactwear International’s review of the circumstances. In the event a Purchaser cancels a Product order or refuses to accept delivery of Product(s), Purchaser shall be responsible for a twenty-five percent (25%) restocking charge on any and all Products returned to Impactwear International.
6. Product Delivery. All dates quoted for Product delivery are approximate only, and Impactwear International shall not be liable to any Purchaser for any damages suffered by a Purchaser as a result of a delay in the delivery of Products. It is the sole responsibility of the Purchaser to provide Impactwear International with adequate delivery instructions and to accept delivery of the Products when delivered by the carrier of Impactwear International’s choice. Risk of loss to any and all Products shall pass to the Purchaser upon Impactwear International’s delivery of the Products to the delivery carrier of Impactwear International’s choosing. Title to the Products shall not pass to the Purchaser until the Purchaser has paid Impactwear International the full purchase price and any related charges (Taxes, etc.) in connection with such Products. Purchaser shall be invoiced for any and all costs incurred by Impactwear International for redirecting shipments due to incorrect addresses provided by the Purchaser or Purchaser’s representative.
7. Warranties & Applicability; Representations; Liability, Remedy & Disclaimer.
Impactwear International warrants that its Products shall conform to the written descriptions of such Products as provided to you through the Site or other official media or literature published exclusively by Impactwear International or its authorized agents. All Impactwear International products are subject to a limited three (3) month warranty providing for replacement by Impactwear International in the event such Products are defective or non-conforming.
THIS WARRANTY IS EXCLUSIVE, AND IMPACTWEAR INTERNATIONAL DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT IN CONNECTION WITH AND INCLUDING, BUT NOT LIMITED TO, (I) THE SITE (II) THE OFFERING, PURCHASE AND USE OF ANY IMPACTWEAR INTERNATIONAL PRODUCTS ADVERTISED ON THE SITE OR BY ANY OTHER MEANS, AND (III) THE ACCURACY, COMPLETENESS, TIMELINESS OR CURRENTNESS OF THE CONTENT AND INFORMATION CONTAINED ON THE SITE OR IN ANY IMPACTWEAR INTERNATIONAL CATALOGUE, PRICE LIST OR OTHER PUBLICATION IN ANY MEDIUM, AND IN ANY WAY AND FOR ANY PURPOSE WHATSOEVER.
b. Applicability of Warranty
Impactwear International’s warranties made in connection with the offering and/or sale of any Product(s) through the Site or otherwise shall not be applicable if Impactwear International has determined, in its absolute sole discretion, that a Purchaser has misused the Product(s) in any manner whatsoever, has failed to use the Product(s) in accordance with industry standards and practices or has failed to use the products in accordance with instructions (including User Instructions), if any, furnished by Impactwear International on the Site and/or with the Product’s packaging when delivered to the Purchaser.
c. Representations & Warranties
All Purchasers represent and warrant to Impactwear International that they will (i) properly inspect and test any and all Impactwear International Products they purchase (by any means, and from any source) prior to use, (ii) when using any Product act in accordance with the practices of a reasonable person who is engaged in the activity that Impactwear International has specifically designed its Products for, and (iv) act in strict compliance with all applicable laws and regulations, now and hereinafter enacted when using any and all Products. All Purchasers of Impactwear International Products represent and warrant that they understand that no Impactwear International Product is designed as a substitute for any certified devices or protective equipment.
d. Liability, Remedy & Disclaimer
Impactwear International’s sole and exclusive liability, and a Purchaser’s sole and exclusive remedy, with respect to Products proved to Impactwear International’s satisfaction to be defective or nonconforming shall be replacement of such Product(s) without charge or refund of the purchase price (Purchaser-claimant shall be responsible for all associated shipping and tax costs, if any, in the event of replacement), in Impactwear International’s sole discretion, upon the return of such Product(s) in accordance with Impactwear International’s instructions for Product Returns (as set forth in Section 5).
IN NO EVENT WILL IMPACTWEAR INTERNATIONAL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INDIRECT DAMAGES ARISING OUT OF (I) THE USE OF OR INABILITY TO USE OR ACCESS THE SITE OR ANY RELATED CONTENT, (II) THE OFFERING AND/OR PURCHASE OF ANY PRODUCT(S), (III) THE CONTENT PROVIDED ON THE SITE OR WITH RESPECT TO ANY PRODUCT(S) IN ANY MEDIUM WHATSOEVER, OR (IV) THE LOSS OF ANY DATA WHILE USING THE SITE OR ACCESSING ANY RELATED CONTENT, EVEN IF IMPACTWEAR INTERNATIONAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, PERSONAL OR BODILY INJURY, PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS IMPACTWEAR INTERNATIONAL’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8. Use and Limitations of Products.
a. Primary Uses
Impactwear International’s Products are intended primarily for personal impact protection and, unless otherwise stated on Product labels, in Impactwear International’s Products catalog or price listing (either or both of which may be published on the Site or in any other medium of Impactwear International’s choosing), or in any other official literature or media published and disseminated by Impactwear International or its authorized agents and furnished to you, are not to be used for any other purposes other than those specified in labelling and/or User Instructions. You acknowledge and agree that none of the Impactwear International Products have been tested by Impactwear International for safety and efficacy for any uses except for the intended use as specified in the User Instructions, or for any commercial applications whatsoever, unless otherwise stated on Product labels, in Impactwear International’s Products catalog or price list, or in other official literature or media published and disseminated by Impactwear International or its authorized agents and furnished to you.
9. No Harmful Use; Site Interaction. In exchange for our permission to use the Site, you agree not to do anything to harm the functioning or content of the Site. You also agree that you will not use any false or misleading identity when interacting with this Site (e.g. when leaving a “Comment” on the Site with respect to one or more of our Products), or do, transmit or post anything that is fraudulent, obscene, libelous or legally prohibited under the laws of any applicable jurisdiction. Your use of the Site shall not involve the transmission of any content or material which violates or infringes on the rights of other third parties including, but not limited to, the rights of other third parties in any trademarked, copyrighted or patented materials. Any use of this Site which, in Impactwear International’s sole discretion, results in the transmission of any material, content, data or information that is unlawful, derogatory, defamatory, abusive, threatening, vulgar, obscene, or profane (e.g. posting threatening obscene language in the “Comments” section below one or more Product(s)) is strictly prohibited. Additionally, any use of the Site which prevents any other User from enjoying the benefits of, or from gaining access to, the Site, which in Impactwear International’s sole discretion would result in a violation of these Terms, is strictly prohibited. All interactions with the Site must comply with these Terms.
10. Indemnification & Action by Impactwear International.
You agree to indemnify and hold harmless Impactwear International, its affiliates, advertisers, employees, agents, legal representatives, successors, officers and assigns (collectively, the “Indemnified Parties”), from and against any suits, losses, claims, actions, damages, demands, liabilities, costs and expenses whatsoever (including attorneys’ fees, other legal costs and accounting fees) that the Indemnified Parties may sustain or incur as a result of any claim based upon negligence, breach of warranty, personal or bodily injury, strict liability in tort, contract, or any other theory of law brought by you, your officers, agents, employees, successors or assigns, by your customers or end users (if you are a re-seller of our Products), by auxiliary personnel (such as freight handlers, etc.) or by any other third parties, arising out of or relating, directly or indirectly, to these Terms or the offering, purchase or use of Impactwear International’s Products by any means whatsoever (collectively, “Claims”). You shall notify Impactwear International in writing within fifteen (15) days of your receipt of knowledge of any accident, or incident involving Impactwear International’s Products which results in personal injury, damage to property or otherwise gives rise, directly or indirectly, to one (1) or more Claims. You shall fully cooperate with Impactwear International in the investigation and determination of the cause of any and all Claims and shall make available to Impactwear International all statements, reports and tests made by you or made available to you by others in connection with any and all Claims. The furnishing of such information to Impactwear International and any investigation by Impactwear International of such information or incident report shall not in any way constitute any assumption of any liability for such Claim(s) by Impactwear International.
b. Action by Impactwear International
IF IMPACTWEAR INTERNATIONAL TAKES ANY LEGAL ACTION AGAINST YOU AS A RESULT OF YOUR VIOLATION OF THESE TERMS OR A RELATED AGREEMENT, YOU AGREE THAT YOU WILL BE RESPONSIBLE FOR, AND WILL PAY ALL OF, IMPACTWEAR INTERNATIONAL’S LEGAL FEES AND ASSOCIATED EXPENSES INCURRED IN CONNECTION WITH SUCH ACTION.
11. Content & Reliance. The information, content and material provided on the Site, in any Impactwear International price listing, catalog or other official publication distributed or made available to you in any medium and by any means (collectively, “Content”) is for marketing and advertising purposes only. Your use of, or reliance on, the foregoing Content shall in no way create a legal, business or other professional relationship between you and Impactwear International. The Content is provided to you on an “as-is,” “as available,” and “with all faults” basis. You expressly agree that your use of the Content, and reliance on any such information, is at your sole risk. Except as set forth in Section 7(a) of these Terms, Impactwear International makes no representations, warranties or guarantees, express or implied, regarding the accuracy, reliability or completeness of the Content. Impactwear International shall not be responsible or liable for any errors, omissions or inaccuracies in any Content.
12. Proprietary Information and Limitations of Use. This Site contains proprietary information that includes copyrighted, trademarked, and other content which is protected by law. Impactwear International hereby grants you a limited personal use license to access, display and view portions of the Site solely for your own personal and non-commercial use; provided, however, that in order for the preceding sentence to apply, and for such license to remain valid and not be automatically terminated without notice to you (which you hereby consent to by your agreement to these Terms), any such content is not modified or pirated, all proprietary notices are kept intact, and all terms and conditions set forth herein are complied with. You may not reproduce, publish, translate, merge, sell, rent, or distribute the content provided on this Site, including, but not limited to, text, images, logos, algorithms, and software code. The foregoing may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. You are further prohibited from creating a derivative work of the content of this Site on any other web site, or through any other service or commercial endeavor without Impactwear International’s express written permission. You may not frame or utilize framing techniques to enclose any content on this Site. You agree that you will not attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising, or in any way making up a part of, the Site or the Service. Any violation of this provision may be prosecuted to the fullest extent of the law.
You may not use any deep link, page scrape, robot, “spyder” or other automatic device, program, algorithm or other similar or equivalent manual process to acquire, access, copy or monitor any portion of the Site or its content, or in any way reproduce or circumvent the navigational structure or presentation of the Site.
If you would like to hyperlink to this Site from another site, you must obtain our express written permission in advance. You may seek our permission using the “Contact” feature of the Site. Unless our express written permission indicates otherwise, all links must be to the Site’s home page (http://www.impactwear.com) and not to any sub-page within our Site. All links, when activated, must display our Site on a full-screen page, in a fully operable and navigable browser window, and not within a browser “frame.” No link should create any false impression or appearance that you are a part, or under the control, of Impactwear International, and nothing should be done to damage or dilute Impactwear International’s reputation or goodwill. Impactwear International reserves the right to revoke any and all linking privileges at any time in its sole discretion without notice to you.
14. Malfunctions, Service Interruptions or Viruses. Impactwear International makes no representations, warranties or guarantees that the Site and the content contained therein are free of infection from any viruses, malicious code, computer programming routines or languages that contain contaminating or destructive properties, or that are intended to damage, surreptitiously intercept or expropriate any system, data, or personal or confidential information. You are solely responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for integrity, security and accuracy of data input and output, and for maintaining a means external to the Site and the Service for the reconstruction of any lost data or information.
Impactwear International cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data or other Site interruptions. Impactwear International cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any User data or communications. Your access to and use of the Site may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, natural disasters, acts of God, periodic updating or other actions that Impactwear International, in its sole discretion, may elect to take. You represent and warrant that you have the lawful right to submit information to this Site, and agree that you will not submit any information unless you are legally entitled to do so.
15. Customer Service. You may contact Impactwear International customer service by using the “Contact” feature on the Site. Notwithstanding, you acknowledge and agree that the provision of any customer service to you is at our sole discretion, and that we may, but have no obligation to, provide you with customer service of any kind. You hereby acknowledge, agree and consent that any and all communications with our customer service team, if any, that relate to your use of any Products purchased by any means, or in connection with your interaction with or access to the Site, may be in electronic form only. You further acknowledge, agree and consent that all notices, disclosures or any other communications that Impactwear International may provide to you may be in electronic form only, and such notices, disclosures or communications shall completely satisfy any legal requirement that such communications be in writing.
16. Site Monitoring. Impactwear International shall have the right, but is under no obligation whatsoever, to monitor content, comments, feedback or other materials or information that may be posted on, or otherwise transmitted by one (1) or more Users now or hereafter through the Site. YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT REGULARLY MONITOR THE ACCURACY, TRUTHFULNESS OR RELIABILITY OF SUCH CONTENT, COMMENTS OR MATERIALS. Impactwear International may remove, in its sole discretion (without any obligation to do so) any content, comments, feedback or other materials or information posted on or transmitted through the Site to enforce and maintain these Terms or any related agreement, satisfy any applicable law, regulation or authorized government request.
17. Severability. If any provision of these Terms is deemed unlawful, void or unenforceable by any arbitrator, administrative body or court of competent jurisdiction, these Terms as a whole shall not be deemed unlawful, void or unenforceable, and in no way shall such provision(s) impair the enforceability of any of the other portions herein. Moreover, if any provision(s) of these Terms shall for any reason be held to be excessively broad as to scope, activity, or subject, such provisions shall be construed by the appropriate judicial or administrative body by limiting and reducing it or them, so as to be enforceable to the extent compatible with the applicable law or regulation.
18. Waiver. You agree that if Impactwear International does not exercise or enforce any legal right or remedy which is contained in, or granted by, these Terms, such action will not be deemed a formal waiver of Impactwear International’s rights or remedies, nor will such action constitute a relinquishment of any right or power hereunder at any one or more times.
19. Exclusion of CISG. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms or to any agreement (now or hereafter arising) offer, purchase or sale that may be in any way, directly or indirectly, related to any Impactwear International Product(s).
20. Arbitration. Any controversy, dispute, claim or Claims arising out of or relating in any way whatsoever to any Impactwear International Product, these Terms or a related agreement, or the violation thereof, if not earlier resolved by the parties hereto, shall be settled exclusively by arbitration. This agreement to arbitrate shall be binding and enforceable, and judgment upon any award rendered by all or a majority of the arbitrators may be entered in any court having competent jurisdiction. Impactwear International shall have the sole right to select the firm or agency administering the arbitration, (i.e., American Arbitration Association, ICC, etc.). The arbitration shall be held in Providence, Rhode Island. Three (3) arbitrators shall be selected by the agency administering the arbitration. Unless otherwise provided for in these Terms (such as in Section 10(b)), all fees and expenses of the arbitrators and the administering firm or agency shall be shared equally by the parties hereto.
21. Jurisdiction. You agree that any dispute arising hereunder or with respect to any and all Impactwear International Products shall be governed by the laws of The State of Delaware, without regard to any of its conflicts of law principles.
22. Entire Agreement. These Terms constitute the entire agreement between you and Impactwear International and supersede any prior understandings, agreements, or representations made by or among you and Impactwear International, written or oral, to the extent they relate in any way to the subject matter hereof.