Terms and Conditions
1. General. These terms and conditions of sale (the
"Terms") govern any sale by Pro Athletics LLC (the
"Seller") of any products or services by the Seller (the "Products")
to any person or entity (the "Buyer"). Any pre-printed terms contained or referenced
on the Buyer's purchase order or similar instrument, whether contradictory to
the terms appearing herein or otherwise, are rejected by the Seller. All orders shall be subject to the Terms and
the Terms may not be added to, modified, superseded, waived or otherwise
altered except by a written instrument signed by an authorized officer of the
Unless otherwise specified in an invoice issued by the Seller (the "Invoice"),
prices do not include shipping and any applicable sales tax, which are the sole
responsibility of and shall be paid by the Buyer.
3. Terms of Payment. Unless otherwise agreed to in writing by the
parties, all orders shall be paid in full upon the Buyer's receipt of the Invoice
and prior to delivery of the Products. The
Seller will not begin production of any Custom Products until it has received a deposit
from the Buyer equal to 70% of the total purchase price of the Products ordered
by the Buyer. Additionally, the Seller routinely
requires the Buyer to make additional advance deposits and payments during the
course of design and manufacture. No
refunds of any deposits or other payments made to the Seller will be provided
after the Seller has commenced production of the Custom Products to the fullest extent
permitted by applicable law, except if the Seller is unable to provide the
Products for reasons not caused by the Buyer.
4. Ownership. Except for the Buyer Materials (as defined
below), the Seller shall own all worldwide right, title and interest in and to
the designs, patterns, logos, artwork, proofs, and vector files for the
Products (collectively, "Designs"), including all worldwide
intellectual property rights to the same, including without limitation, all
United States and worldwide patents, patent applications, copyrights,
trademarks, service marks, trade secrets, rights of publicity and other
proprietary rights. No Products or
Designs shall be considered in any respect a "work made for hire"
under the U.S. Copyright Act.
5. Limited Warranty. The Seller warrants that the Products shall
be free from defects in material and
workmanship regarding design and numbering.
The Seller's sole obligation under the warranty shall be to replace any defective
Products provided that (a) Buyer delivers written notice of defectiveness
hereunder to Seller within 10 days after the date of shipment of the Products
to the Buyer, (b) Buyer returns the Products to the Seller's facility, and (c) after examination the Products are determined
by the Seller to be defective. The
Seller assumes no liability for damages to the Products resulting from use, negligence,
abuse, maintenance or alteration. The Seller also assumes no liability for delays resulting from third party shipping carriers and will not be held responsible for any such delay.
We do not warrant exact color
matching. We will do our best to match colors per the Buyers request and
across products but we cannot be held responsible for inherent
variations that occur during the manufacturing process which are out of
6. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION
5, ALL PRODUCTS ARE PROVIDED "AS-IS" AND THE SELLER MAKES NO
OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PRODUCTS OR TO ANY
DELIVERY SCHEDULES, NONE OF WHICH ARE GUARANTEED. THE SELLER DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. Limitations of Liability & Damages. IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT OR OTHERWISE, REGARDLESS OF WHETHER
THE SELLER HAD NOTICE OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. The Buyer's sole and exclusive remedy for any claim or damage arising from or otherwise related to this Agreement, whether in contract or in tort, shall be limited to the Seller, in its sole discretion,either replacing any defective Products pursuant to Section 5 above or returning to the Buyer the amount paid to the Seller for the defective Products.
8. Indemnification. The Buyer shall indemnify, defend and hold the
Seller and its officers, directors, employees and shareholders harmless from
and against any and all claims, liabilities, damages, debts, settlements,
costs, attorneys' fees, and expenses of any kind or nature relating to or
arising from (a) the use of the Products, (b) claims made by third parties relating
to the Products, (c) injuries (including death) to any person or damage to any
property however caused arising from or related to the Products, or (d) claims
relating to infringement of trademark, copyright or other intellectual property
rights arising out of or related to graphics, images and logos provided by the
Buyer (collectively, the "Buyer Materials").
9. No Cancellation nor Refunds. Custom orders may not be cancelled after being submitted
to the Seller except upon the written consent of the Seller which may be
withheld or conditioned in the Seller's sole discretion. There will be no refunds of deposits once production has started.
10. General. This Agreement shall be governed by the
laws of the State of California, without regard to the conflict-of-laws
provisions of such state. The parties
hereby irrevocably submit to the exclusive jurisdiction of the courts of the
State of California and any United States District Court situated in the State
of California for the purpose of construing and enforcing this Agreement. Failure by a party to require performance by
the other party or to claim a breach shall not be construed as a waiver of any