Sales Terms and Conditions
Net Billing. Unless otherwise agreed in writing and signed by an authorized representative of e-Mayhem LLC, or except where a Master Service Agreement from e-Mayhem LLC is in effect, these Sales Terms and Conditions (“Sales Terms”), as published on e-Mayhem’s Web site located at www.e-mayhem.com at the time of sale, govern all purchases of products and services, including e-Mayhem Services (collectively “Products”) by the entity placing an order (“Buyer”) and e-Mayhem LLC.For the purposes of these Sales Terms, the term “e-Mayhem Services” means services provided by e-Mayhem or e-Mayhem’s subcontractor which may be offered as a SKU or as described in a Statement of Work (SOW), excluding services provided by a manufacturer, publisher or other service provider of the Products (“Vendor”). e-Mayhem will specify Buyer’s payment terms when a quote is generated; payment terms are subject to change from time to time. e-Mayhem has the right to modify, increase, decrease or terminate Buyer’s payment terms at any time.
Orders. For all of Buyer’s purchases from e-Mayhem: (i) e-Mayhem is required to sell the Product within the authorized territory only, in accordance with any applicable Vendor territory limitations, and comply with all U.S. trade policies and laws as well as U.S. export control laws and regulations; (ii) Buyer may not resell Products outside the authorized territory without e-Mayhem’s prior written approval. Additional terms and conditions may apply to the purchase of certain Products as specified with the description of the particular Product. Buyer’s orders are offers to purchase Products subject to these Sales Terms. All orders are subject to e-Mayhem’s acceptance. e-Mayhem may decline or cancel any order for any reason at any time prior to acceptance, which occurs at time of shipment, or as otherwise specified in these Sales Terms. e-Mayhem’s acceptance of Buyer’s order is limited to these Sales Terms without any modification or exception. Additional terms and conditions on any Buyer document (e.g., order) will have no effect and will not change or add to these Sales Terms whether or not e-Mayhem specifically objects to those terms and conditions. Buyer represents and warrants that all of Buyer’s employees and agents placing orders on behalf of Buyer are duly authorized to commit Buyer. All accepted orders are binding. Buyer may not cancel or amend any accepted order without e-Mayhem’s written consent, except in the event of a material default by e-Mayhem with respect to such order which has not been cured by e-Mayhem within a reasonable period of time, but not less than 10 days, following receipt of written notice from Buyer of such default. Any cancellation by Buyer permitted under these Sales Terms must be in writing or e-mail and specify in reasonable detail the nature of the default. Orders for non-standard Products, including Products configured to Buyer’s specifications, are non-cancelable and non-returnable.
Price. Buyer may purchase Products at the prices prevailing at the time of shipment, as determined by e-Mayhem. Quoted prices are subject to change without notice and, unless specifically included in a quote or invoice, do not include any taxes, handling, shipping, transportation, duties or other charges or fees. Buyer is responsible for all applicable fees and all federal, state, provincial, municipal, and other government taxes on the sale and delivery of Products. Buyer must present to e-Mayhem exemption certificates, valid in the place of delivery, prior to shipment. If Buyer is offered special pricing for certain orders and such pricing is made available to e-Mayhem by a Vendor, Buyer will adhere to the applicable special pricing terms and conditions provided by the Vendor. Buyer agrees to pay any service fees charged for e-Mayhem’s pass through of special pricing and other Vendor driven benefits Buyer may receive, including any marketing funding, price protection and individual rebates, and agrees that pass through and payment of such benefits will be subject to e-Mayhem having received the benefits from Vendor. The special pricing terms may require e-Mayhem to comply with certain requirements including without limitation: (i) the sale of the Products only to specifically named customers; (ii) the disclosure of Buyer information to e-Mayhem and the Vendor for the purpose of end-user verification; (iii) the submission of copies of Buyer invoices, purchase orders or shipping documents to e-Mayhem and the Vendor; and (iv) selling the Products into the authorized territory(ies) as specified by the Product’s Vendor. Subject to the special pricing terms and conditions applicable for the individual Vendor and Products, breach of the special pricing terms and conditions may entitle e-Mayhem and/or the Vendor to reclaim and invoice Buyer in full for all discounts, rebates and other special price conditions granted to Buyer under the special pricing terms and conditions or special price. Buyer agrees and understands that any special discounts or promotions offered by e-Mayhem are only applicable to Products that are sold into the authorized territory(ies) as specified by the Vendor. If Buyer does not sell the Products into the authorized territory(ies) as specified by the Vendor, Buyer agrees to reimburse e-Mayhem the value of special discounts and promotions and indemnify e-Mayhem from and against all losses, claims, damages, penalties, costs and expenses caused by Buyer when failing to comply with this provision.
Payment. Buyer agrees to pay all charges according to the payment terms established in each invoice for Products it acquires from e-Mayhem. Buyer waives any right it may have at law, in equity, under contract or otherwise to set-off or exercise any similar remedy against e-Mayhem in whole or in part, any sum that e-Mayhem or any of its subsidiaries may owe Buyer. e-Mayhem may apply payments to any of Buyer’s accounts. If Buyer defaults on any payment to e-Mayhem, e-Mayhem may reschedule, suspend, or cancel any outstanding delivery or order and declare all outstanding balances under all invoices immediately due and payable. Buyer agrees to pay interest in the amount of 1.5% per month, or the highest rate permitted by law, whichever is less, on any payment past due, pursuant to the terms set forth on each invoice until collected.
Transportation. All deliveries of Products to destinations in the United States, excluding its territories and possessions, will be made FOB origin e-Mayhem’s designated location; this may include dropship orders from e-Mayhem’s distributors or on occasion standard carriers (ex. USPS, FedEX, UPS, etc.) from one of e-Mayhem’s facilities. Title to and risk of loss, damage or delay to Products (except for software and services) will pass to Buyer upon e-Mayhem’s tender of the Products to the transportation provider. After transportation of a shipment of Products from e-Mayhem has commenced, Buyer will not divert the shipment to a different consignee or destination point without e-Mayhem’s written approval. If e-Mayhem arranges transport on e-Mayhem’s account, transportation will be arranged and charges will be added to Buyer’s invoice in accordance with e-Mayhem’s transportation policy at the time of shipment unless waived by an authorized representative of e-Mayhem in writing. e-Mayhem is not responsible for spotting, switching, demurrage or other transportation charges unless agreed in writing. e-Mayhem is not liable for any delays in delivery or for partial or early deliveries. If Buyer directs e-Mayhem to charge transportation fees to a third-party account number or to ship “freight collect”, Buyer is responsible for all transportation and accessorial charges associated with the order and remains responsible for cargo loss and damage in transit claims with the transportation provider. e-Mayhem is not liable for any Buyer requirements not stated in these Sales Terms. Buyer or the consignee receiving delivery must accept deliveries of all shipments, including partially damaged or “short” shipments, and must inspect the Products and secure written acknowledgement from the transportation provider for any shortages, loss, damage or nonconformance. Buyer must notify e-Mayhem in writing within three days of receipt of any delivery of any shortages or non-conforming Products. If Buyer fails to notify e-Mayhem with such three-day period of any shortages or non-conforming Products, the Products will be considered accepted.
Returns. Buyer may only return Products as permitted in these Sales Terms. Products are otherwise non-returnable and the prices and fees are non-refundable. Products damaged after receipt may not be returned. In order to be eligible to receive credit for returned Products, Buyer must adhere to e-Mayhem’s current returns processing guidelines. Buyer must obtain a valid return merchandise authorization number (“RMA”) from e-Mayhem for all returns prior to returning any Product. e-Mayhem has no obligation to issue RMAs. Buyer is responsible for ensuring that the RMA is clearly visible on the address label of the Product packaging and for complying with all other e-Mayhem requirements provided to Buyer when the RMA is issued. Unless otherwise agreed in writing by e-Mayhem, all Product returns from Buyer are FOB destination e-Mayhem’s designated facility, and title and risk of loss will transfer to e-Mayhem upon receipt and acceptance of returned Products at e-Mayhem’s facility. e-Mayhem may refuse delivery of any package without a valid, clearly visible RMA. Except for defective or damaged Products, all Products must be returned with the original packaging intact (including manufacturer’s shrink wrap) and otherwise in unused, resalable condition. Credit will be provided for Product returned in accordance with e-Mayhem’s return policies at the time the RMA is issued. If Buyer returns any Products without e-Mayhem’s authorization or does not comply with e-Mayhem’s return requirements, those Products may be subject to return to the shipping location and, if refused, e-Mayhem may consider the Products abandoned and dispose of them, without crediting Buyer’s account. e-Mayhem may charge a restocking fee for handling any Product that is not returned in accordance with these Sales Terms. e-Mayhem’s sole liability for any returned Products will be acceptance of their return and issuance of credits pursuant to e-Mayhem’s returns processing guidelines.
Warranties/Indemnities. Buyer acknowledges that e-Mayhem is not the manufacturer of the Products. Product warranties, if any, are provided by the Vendor of the Products. e-Mayhem EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, EITHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO ANY PRODUCT, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. ALL INFORMATION IS PROVIDED TO BUYER “AS IS.” To the extent authorized, e-Mayhem will pass through to Buyer any transferable Product warranties, indemnities, and remedies provided to e-Mayhem by the Vendor including any warranties and indemnities for intellectual property infringement. Buyer’s, its affiliates’, and their respective customers’ sole and exclusive remedy relating to the Products will be the remedy afforded by the applicable Vendor of such Products to such parties. e-Mayhem Services will be performed in a professional and workmanlike manner in accordance with the applicable quotation or SOW. Any applicable warranty period for e-Mayhem Services will be specified in the service description or SOW. As its sole remedy, Buyer may request e-Mayhem re-perform e-Mayhem Services that do not conform to the warranty within the applicable warranty period. Buyer warrants and represents it will investigate the validity and accuracy of all orders for Products placed with e-Mayhem, including orders for delivery of Products to third parties or to non-Buyer destinations, and that Buyer is solely responsible for the accuracy of all shipment and delivery instructions to e-Mayhem. Under no circumstances will e-Mayhem be obligated to investigate, validate, confirm or reconfirm Buyer’s delivery orders, shipment or delivery instructions or the identity of consignee/receiving personnel at destination, nor will e-Mayhem be liable for incorrect or inaccurate shipment instructions or consignee or destination information.
e-Mayhem IS NOT RESPONSIBLE FOR AND HAS NO DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS BUYER, ITS AFFILIATES, THEIR CUSTOMERS, OR ANY OTHER PARTY, FROM OR AGAINST ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION, INCLUDING ANY DAMAGES, COSTS OR EXPENSES INCURRED BY SUCH PARTIES, ARISING FROM OR RELATING TO THE ACTUAL OR ALLEGED PRODUCT LIABILITY, BREACH OF SECURITY, LOSS OF DATA, OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS RELATED (DIRECTLY OR INDIRECTLY) TO THE MANUFACTURE, SALE, OR USE OF THE PRODUCTS. Buyer warrants that it has all necessary legal rights to all intellectual property it provides to e-Mayhem. BUYER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS e-Mayhem, ITS AFFILIATES, AND ITS VENDORS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY LIABILITIES, LOSSES, DAMAGES, COSTS OR EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS) ARISING OR RESULTING FROM CLAIMS, DEMANDS, ACTIONS OR PROCEEDINGS OF ANY KIND ARISING FROM OR RELATING TO: (i) BUYER’S USE, MARKETING, DISTRIBUTION OR SALE OF PRODUCTS IN A MANNER OTHER THAN AS SPECIFIED IN PRODUCT DESCRIPTIONS OR SPECIFICATIONS; (ii) e-Mayhem’S OR ITS VENDOR’S COMPLIANCE WITH DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS PROVIDED BY BUYER; (iii) BUYER’S BREACH OF THESE SALES TERMS OR ACTS OR OMISSIONS OF BUYER, ITS AFFILIATES, ITS AGENTS, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS OR DIRECTORS; OR (iv) VIOLATION OR ALLEGED VIOLATION OF ANY APPLICABLE LAWS OR REGULATIONS BY BUYER OR ITS AFFILIATES.
Limitation of Liability. e-Mayhem will have no liability for: (i) failure to allocate or reserve any Product for Buyer; (ii) failure to deliver Products within a specified time period; (iii) availability and/or delays in delivery of Products; (iv) discontinuation of Products, product lines, or any part thereof; (v) cancellation of any orders; or (vi) shortages on shipments of Product shipped under seal where the seal is not intact upon delivery by the transportation provider. THE ONLY LIABILITY e-Mayhem WILL HAVE WITH RESPECT TO ANY DAMAGED OR DEFECTIVE PRODUCTS WILL BE THE RETURN RIGHTS DESCRIBED HEREIN. BUYER AGREES THAT e-Mayhem’S LIABILITY FOR DAMAGES ARISING UNDER THESE SALES TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO ACTUAL, PROVEN, DIRECT DAMAGES AND WILL NOT EXCEED THE NET AMOUNT PAID TO e-Mayhem BY BUYER FOR THAT PRODUCT WHICH IS THE SUBJECT OF THE CLAIM. TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER WAIVES ANY CLAIMS, DEMANDS, CAUSES OF ACTION, OR RECOVERIES FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SALE OF THE PRODUCTS, FAILURE TO PERFORM IN ACCORDANCE WITH THE SALES TERMS, OR ANY PRODUCTS OR INFORMATION, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INJURY TO PERSONS OR PROPERTY, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION OR LOSS OF GOODWILL, LOSS OF DATA, OR SECURITY BREACH, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, AND EVEN IF e-Mayhem HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY TORT OR STATUTORY CAUSES OF ACTION. BUYER EXPRESSLY WAIVES ALL CLAIMS FOR THOSE DAMAGES. THIS PROVISION WILL SURVIVE ANY TERMINATION OF THESE SALES TERMS. THE OBLIGATIONS OF e-Mayhem LLC. AND ANY OF ITS SUBSIDIARIES UNDER THESE SALES TERMS ARE THE SEVERAL OBLIGATIONS OF EACH SUCH ENTITY, AND NOTHING HEREIN WILL CREATE ANY JOINT AND SEVERAL LIABILITY BETWEEN OR AMONG e-Mayhem AND ANY OF ITS SUBSIDIARIES.
Force Majeure. Neither party will be responsible for delays in performance due to events of force majeure, including, without limitation, fire, flood, tornado, earthquake, war, riot, insurrection, strike, lockout, slowdown, epidemic, quarantine restriction, delay in transportation, labor shortage or strikes, materials or manufacturing facility shortage, accidents, boycott, embargo or any act or regulation of government or governmental authority and other contingencies beyond such party’s control resulting in impossibility or delay of performance.
Compliance. Each party agrees to abide by all laws and regulations applicable to its performance of its obligations under these Sales Terms. Neither party has made, and will not make, any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, promise to give, or authorization of the giving, of anything of value to any government official, or the immediate family of any such official, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, Buyer or e-Mayhem in obtaining or retaining business, or securing an improper advantage. If Buyer delivers the Products to its customer who may use the Products outside the United States, Buyer will advise its customer that the Products are controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States or re-export.
Restrictions. Buyer agrees to adhere to all applicable Vendor channel policies and program requirements, including without limitation, Vendor’s restrictions regarding Product distribution, resale, prohibited customers, territory, etc. Buyer is solely responsible for ensuring its adherence to any and all such restrictions. Buyer may not alter or modify the Products in any way or combine the Products with any other product or material not authorized by e-Mayhem and/or the Vendor, as applicable.
Relationship. Buyer and e-Mayhem are independent contractors. Nothing stated in these Sales Terms will be construed as creating the relationship of employer/employee, franchisor/franchisee, partners or principal/agent between the parties. Neither party will make any warranty, guarantee or representation, whether written or oral, on the other party’s behalf.
Governing Law. These Sales Terms will be construed and enforced in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties agree to and submit to personal jurisdiction and exclusive venue in the state and federal courts situated in Orange County, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Sales Terms. Buyer must pay to e-Mayhem all costs and expenses, including without limitation, reasonable attorney’s fees and the fees of any collection agency and court costs, incurred by e-Mayhem in exercising any of its rights or remedies under, or enforcing or defending any of the terms, conditions or provisions of, these Sales Terms.
Notices. All notices, requests, demands, and other communications must be in writing and may be given by: (i) personal delivery; (ii) registered or certified mail, return receipt requested; or (iii) nationally recognized courier services to the party at its official corporate address. Notices to e-Mayhem must be sent to: e-Mayhem LLC., 322 North Orange Ave. Brea, CA 92821, Attention: Legal Department.
Publicity. Except for any announcement intended solely for internal distribution by either party or any disclosure required by legal, accounting, or regulatory requirements, all media releases, public announcements, or public disclosures by either party or its employees or agents relating to these Sales Terms, the relationship between e-Mayhem and Buyer, or including the marks of the other party or any affiliate of that party, must be approved in writing by the other party prior to release.
Assignment. Buyer may not assign or delegate its rights or duties under these Sales Terms, by operation of law or otherwise, in whole or in part, without the prior written consent of e-Mayhem. Any direct or indirect change of control of Buyer will be deemed an assignment. Any attempted assignment by Buyer without that consent will be null and void without any force or effect. e-Mayhem’s affiliates may perform its obligations arising under these Sales Terms. These Sales Terms will be binding upon and, except as otherwise provided herein, will inure to the benefit of the parties hereto and their respective successors and assigns.
Validity and Severability. If any provision of these Sales Terms is held to be unenforceable, the enforceability of the remaining provisions will not in any way be affected. Failure or delay of either party to exercise a right under these Sales Terms will not operate as a waiver, nor will any single or partial exercise of a right preclude any other future exercise of that right. The parties agree to use electronic signatures and that their respective electronic signatures will be legally enforceable.
No Waiver. Failure or delay of either party to exercise a right or power under these Sales Terms will not operate as a waiver thereof, nor will any single or partial exercise of a right or power preclude any other future exercise of that right or power.
Survival. No termination of these Sales Terms will affect any rights or obligations of either party which: (i) are vested pursuant to these Sales Terms as of the effective date of such termination; or (ii) by their sense and context are intended to survive completion of performance or termination of these Sales Terms, including, without limitation, Confidentiality, Warranties / Indemnities, and Limitation of Liability, all of which will survive.
Confidentiality. In furtherance of the business relationship between e-Mayhem and Buyer, it may be necessary or desirable for either party to disclose to the other certain non-public business and/or technical information that is either marked “Confidential” or by its nature should reasonably be considered confidential (the “Confidential Information”). Each party will protect Confidential Information from unauthorized disclosure or access by using the same degree of care it takes to protect its own confidential information which in no event will be less than reasonable care. Each party’s Confidential Information may be disclosed by the other party to those employees, affiliates or agents of such party who have a need to know and an obligation to comply with the confidentiality terms in these Sales Terms. The confidentiality obligations in these Sales Terms will not apply to information that is or becomes publicly available, is already in the other party’s possession prior to the time a party gains access, is independently developed by a party or is rightfully obtained from third parties, or as may be required to be disclosed by law or in connection with dispute resolution. Notwithstanding anything herein, e-Mayhem may, from time to time and in its sole discretion, disclose credit information relative to Buyer to third parties for informational purposes only.
Inspection of Records. Buyer will permit the inspection of all records pertaining to the business relationship with e-Mayhem by authorized agents or representatives of e-Mayhem and the audit and verification of all charges and reimbursements within the scope of these Sales Terms. e-Mayhem agrees to notify Buyer of its desire to inspect its records at least 10 days in advance.
Entire Agreement / Amendment. These Sales Terms are intended to be the sole and complete statement of the obligations and rights of the parties as to all matters covered in these Sales Terms, and supersede all previous understandings, agreements, negotiations and proposals except where an e-Mayhem LLC Master Services Agreement is in force in which case such agreement will govern. These Sales Terms may be modified by e-Mayhem from time to time in its sole discretion. No modification of these Sales Terms in effect at the time Buyer places its order will be binding unless the modification is in writing and signed by an authorized representative of e-Mayhem.