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Terms and Conditions

Terms and Conditions of Sale for Persons or Entities Purchasing to Resell to Individuals, Large Corporate, Small and Medium Business Customers

PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU.

These terms and conditions ("Agreement") apply to your purchase and resale of promotional products, related products and/or services and support sold in the United States ("Products") by Diversified Advertising Products Co., Inc. the entity named on the invoice ("ASI #37540") or other documents provided to you by ASI #37540. This Agreement does not apply to you if you are buying for your own end use. By accepting delivery of the Products you agree to be bound by and accept the terms and conditions of this Agreement. These terms and conditions are subject to change at any time in ASI #37540 sole discretion without prior written notice. If you do not wish to be bound by this Agreement, you must promptly notify ASI #37540. Products must remain in the boxes in which they were shipped and notify us immediately to arrange a Product return. YOU WILL BE RESPONSIBLE FOR SHIPPING & HANDLING CHARGES FOR THIS RETURN. ADDITIONAL RETURN OR RESTOCKING FEES MAY APPLY. THIS AGREEMENT SHALL APPLY UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH ASI #37540 OR OTHER ASI #37540 TERMS AND CONDITIONS APPLY.

1. Other Documents. This Agreement may NOT be altered, supplemented or amended by the use of any other document(s) unless otherwise agreed to in a separate written agreement signed by both you and ASI #37540. If you do not receive an invoice or acknowledgement by fax, information about your purchase may be obtained by contacting customer service.

2. Reselling. You may resell Products to end-users. Approval by your customer of merchantability or use shall not be deemed from the sale of Product to you. This Agreement is not exclusive. ASI #37540 may market Products to any third party directly or indirectly without any obligation or liability to you. This Agreement does not guarantee that you will make any sales of the Products. You determine or set your resale Product pricing. ASI #37540 reserves the right to restrict or prohibit your participation in certain promotions, add, modify, or discontinue pricing, Products and/or parts. ASI #37540 may require you to meet additional obligations not outlined herein, which will be disclosed to you prior to your purchase of Products. You will provide ASI #37540 such information and reports as may reasonably be requested by ASI #37540.

3. Trademarks; Copyrights. You may use the "ASI #37540" name and ASI #37540 product names solely for the purpose of accurately identifying the ASI #37540 Products you market and/or sell under this Agreement. You agree to change or correct, at your own expense, any material or activity that ASI #37540 decides is inaccurate, objectionable or misleading or a misuse of ASI #37540 name, trademarks, service marks, or ASI #37540 logos or copyrighted works. You may not use the ASI #37540 name and ASI #37540 product names for any other purpose. You may not use other ASI #37540 trademarks or service marks, or ASI #37540 logos or copyrighted works, at any time. You are prohibited from referring to yourself as an authorized reseller of ASI #37540, implying that you and ASI #37540 are partners, creating the impression that ASI #37540 is affiliated with you or has sponsored, authorized, approved or endorsed your business, or any offer or any marketing, advertising or promotion thereof. You may not register or use any domain name or business name containing or confusingly similar to any name or mark of ASI #37540. You will clearly and prominently identify yourself in all offers and advertising, marketing and promotional materials relating to this Agreement.

4. Quotes; Orders; Payment Terms; Interest. Payment terms are within ASI #37540 sole discretion, and, unless otherwise agreed to by ASI #37540, payment must be made at the time of SHIPPING. Payment for Product may be made by credit card, wire transfer, or some other prearranged payment method. ASI #37540 may invoice and/or ship parts of an order separately. ASI #37540 reserves the right to cancel orders. You agree to pay interest on all past-due sums at the highest rate allowed by law. You hereby grant ASI #37540, and ASI #37540 hereby retains, a purchase money security interest and lien on any and all of your rights, title and interest in Products, wherever located, and all replacements or proceeds of the Products, until the invoice for the applicable Products is paid in full, including any late charges and costs of collection. You consent to ASI #37540 use of this Agreement, as well as Product invoices, as financing statements for protecting this security interest and appoint ASI #37540 as your agent for service of process. Unless you and ASI #37540 have agreed to a different discount, ASI #37540 standard pricing policy for products, which include both products and services in one discounted price, allocates the discount off list price applicable to the invoice to be equal to the overall calculated percentage discount off list price on the entire invoice.

5. Shipping Charges; Taxes. Shipping dates provided by ASI #37540 are estimates only. Shipping and handling are additional and will be shown on the invoice(s) or other documentation. Loss or damage that occurs during shipping by a carrier selected by ASI #37540 is ASI #37540 responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. Unless you provide ASI #37540 with a valid and correct tax exemption certificate applicable to the Product ship-to location at the time of purchase, you will be responsible for sales and all other taxes associated with the order, however designated, except for ASI #37540 franchise taxes and taxes on ASI #37540 net income.

6. Title; Risk of Loss; Insurance. Title to products passes from ASI #37540 to you on shipment from ASI #37540 facility or third party manufacturers facility. You will maintain comprehensive general liability, including products liability, insurance in an amount appropriate for your business, but in no event less than $1,000,000.00 (US) with an insurance company having a Best rating of A. Upon ASI #37540 request, you will provide to ASI #37540 a certificate of such insurance (including any new or amended certificates of insurance) and/or name ASI #37540 as an additional insured.

7. Warranties. ASI #37540 MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN THIS SECTION IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT, OR THE DOCUMENTATION PROVIDED WITH THE PRODUCT(S). ASI #37540 DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES BY ASI #37540 FOR NON-ASI #37540 SUPPLIED PRODUCTS OR SERVICE PRODUCTS. ALL SUCH PRODUCTS ARE PROVIDED BY ASI #37540 "AS IS". NO REVISION IN LIMITED WARRANTIES WILL AFFECT PRODUCTS ALREADY ORDERED BY YOU.

8. Additional Remedies & Responsibilities. ASI #37540 RESERVES THE RIGHT TO DISCONTINUE OR OTHERWISE VOID ANY WARRANTY, SERVICE OR TECHNICAL SUPPORT IT OFFERS IN WHOLE OR IN PART IF YOU BREACH ANY OF YOUR OBLIGATIONS UNDER THIS AGREEMENT OR IF YOU FAIL TO PAY AMOUNTS DUE FOR PRODUCTS YOU PURCHASE FROM ASI #37540. YOU SHALL BE SOLELY RESPONSIBLE FOR ALL REPRESENTATIONS OR OMISSIONS YOU MAKE TO YOUR CUSTOMERS INCLUDING BUT NOT LIMITED TO ANY REPRESENTATION OR OMISSION YOU MAKE ABOUT PRODUCT WARRANTIES, FEATURES, PERFORMANCE, SUPPORT AND SERVICE. YOU WILL INFORM YOUR CUSTOMERS OF ASI #37540 RIGHTS AND YOUR OBLIGATIONS UNDER THIS AGREEMENT.

9. Software/Graphics/Copyrights. All software/graphics/copyright provided by you are subject to the license agreement that is provided with the software/graphics/copyrighted Product. You agree that you and your customers will be bound by such license agreement.

10. No Returns. ASI #37540 return policies including but not limited to ASI #37540 Return Policies do not apply to your purchase of Product or to your customers.

11. Products. ASI #37540 policy is one of on-going Product update and revision. ASI #37540 may revise and discontinue Products at any time without notice to you. ASI #37540 will ship Products that have the functionality and performance of the Products ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible. The parts and assemblies used in building Products and spare parts are selected from new, equivalent-to-new or reconditioned parts and assemblies.

12. Limitation of Liability. ASI #37540 DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, LOST PROFITS, LOSS OF BUSINESS, OR THE PROVISION OF SERVICES AND SUPPORT. ASI #37540 WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ON OUR WEB SITE TO THE CONTRARY, ASI #37540 IS NOT RESPONSIBLE FOR INFORMATION YOU PROVIDE TO US UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT OTHERWISE. YOU AGREE THAT FOR ANY LIABILITY ARISING FROM OR RELATED TO THE PURCHASE OF ANY PRODUCTS, ASI #37540 IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT INVOICED BY ASI #37540 FOR THE RESPECTIVE PRODUCTS. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.

13. YOUR INDEMNITY TO ASI #37540. You will indemnify, defend and hold ASI #37540, including ASI #37540 partners, officers, directors, agents, employees, subsidiaries, affiliates, parents, successors and assigns, harmless from any claim, demand, cause of action, debt or liability (including reasonable attorneys fees, expenses and court costs) arising from: (a) your modification(s) of and/or addition(s) to Product(s); (b) your breach of this Agreement, (c) your omissions, misrepresentations, or negligence, and (d) the Products sold by you damage a third party to the extent such claim is based on (i) your modification of and/or addition to the Products, misuse or abuse of the Products, negligence or breach of any provision in this Agreement; (ii) your failure to abide by all applicable laws, rules, regulations and orders that affect the Products; (iii) your omission, misrepresentation, or negligence, or (iv) you or your end-users cause intentional harm to any person or property.

14. Dispute Resolution. The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against ASI #37540, its agents, employees, successors, assigns or affiliates (collectively for purposes of this paragraph, "ASI #37540") arising out of or relating to this Agreement, ASI #37540 advertising, or any related purchase (a "Dispute") through face to face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then current CPR Rules for Non-Administered Arbitration. The Arbitration will be conducted before three (3) independent and impartial arbitrators. ASI #37540 will appoint one (1) arbitrator and the other party or parties will appoint one (1) arbitrator. The two (2) appointed arbitrators will then select a third arbitrator, who shall be the presiding arbitrator. The arbitration hearing shall take place in North Royalton, Ohio and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. The arbitrators shall base their award on the terms of this Agreement, and will follow the law and judicial precedents that a United States District Judge sitting in the Eastern District of Ohio would apply to the Dispute. The arbitrators shall render their award in writing and will include the findings of fact and conclusion of law upon which their award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. The existence or results of any negotiation, mediation or arbitration will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this paragraph.

15. Independent Contractors. No provision of this Agreement will or shall be deemed to create a partnership, joint venture or other combination between ASI #37540 and you. You and ASI #37540 are independent contractors. Neither party will make any warranties or representations or assume any obligations on the other party's behalf. Neither party is nor will claim to be a legal representative, partner, franchisee, agent or employee of the other party. Each party is responsible for the amounts it incurs arising from this Agreement and for the direction and compensation, and is liable for the actions of, its employees and subcontractors.

16. Governing Law. THE LAWS OF THE STATE OF OHIO GOVERN THIS AGREEMENT, EXCLUDING ITS CONFLICTS OF LAWS RULES AND EXCLUDING THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.

17. Export. You acknowledge that the purchased goods licensed or sold under this Agreement, and the transaction contemplated by this Agreement, which may include technology and software, are subject to the customs and export control laws and regulations of the United States ("U.S.") and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received. You acknowledge that it is your sole responsibility to comply with and abide by those laws and regulations. Further, under U.S. law, the goods shipped pursuant to this Agreement may not be sold, leased or otherwise transferred to restricted countries or utilized by restricted end-users or an end-user engaged in activities related to weapons of mass destruction, including without limitation, activities related to the design, development, production or use of nuclear weapons, materials, or facilities, missiles or the support of missile projects, and chemical or biological weapons. You agree not to provide any written regulatory certifications or notifications on behalf of ASI #37540. ASI #37540 has not tested Products for use in high-risk activities including but not limited to any life sustaining, chemical, or mission critical use. ASI #37540 WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT, OR WEAPONS SYSTEMS.

18. Headings. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived there from. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated. Neither party will be liable for any delays resulting from circumstances or causes beyond the party's reasonable control.