Myostorm Retailer Terms and Conditions
This Retailer Agreement (this "Agreement") is made effective as of the date of the Retailer Account Creation between Myostorm ("Seller") of Utah, and Retailer Account creator.
ITEMS PURCHASED. Seller agrees to offer to Retailer for sale the products (the "Goods") found on this site in accordance with the terms and conditions of this non-exclusive Agreement and according to the wholesale pricing discounts and quantities set forth on this site. MSRP shall be the pricing, without promotional pricing, found on this site. Retail user agrees to abide by the Minimum Advertised Price (MAP) guidelines:
Meteor 2.0: 129.00 per unit
PRICING AND ORDERS. Goods will be ordered at prices and quantities as agreed to by the parties and subject to the terms and conditions of sale and shipment established by the Seller from time to time and in effect at the time Seller accepts the order. The Seller reserves the right to change prices upon reasonable notice to Retailer for subsequent purchases. The Seller agrees to exercise commercially reasonable best efforts to supply Goods to the Retailer in a timely fashion. Retailer agrees to abide by the pricing standards set forth in the above table.
MINIMUM ORDER QUANTITIES. Retailer agrees to order units in the quantities described in the above table. Retailer agrees to purchase at least one item from the above table per store location. Each E-commerce store or platform will count as a store location in addition to brick and mortar location. This includes, but is not limited to, direct-to-consumer websites, Shopify, Bigcommerce, Woocommerce, jet.com, eBay, and other platforms. There shall be no minimum amount of store locations required to purchase through this agreement.
APPROVED SALES CHANNELS. Retailer shall not be allowed to sell the Myostorm in any E-commerce channel/platform unless authorized, in writing, by the Seller. This includes, but is not limited to:● Amazon.com● jet.com● ebay.com● walmart.com● target.com● alibaba.com
SALE OF PRODUCTS. The Seller agrees to sell Goods at the prices indicated herein in accordance with order procedures as may be reasonably communicated by the Seller from time to time. The Seller may amend prices upon notice to Retailer, provided any such amendment shall reflect similar prices applicable to the Goods and contemporaneously offered to other retailers similarly situated.The Retailer is prohibited, while this agreement is in place and for anytime thereafter, from sending paid traffic (PPC) to any digital listing, platform, or website containing Myostorm’s products unless specifically authorized by Seller.
TAXES. The parties agree that payment of any taxes levied on the Goods (other than taxes based on income) shall be the Retailer's responsibility (including, without limitation, federal, state, local, use or similar taxes), and the Retailer shall report and pay such taxes to the appropriate taxing authority as required by law.
TITLE/RISK OF LOSS. All Goods shall be sent in accordance with the Sellers then current shipping policies, including, without limitation, the use of cartons bearing external art work or labels as designated by the Seller. Title to and risk of loss of goods shall pass to the retailer upon delivery F.O.B. at the seller's plant to an agent of the retailer including a common carrier, notwithstanding any prepayment or allowance of freight by the seller.
RETAIL STORE FACILITIES. Retailer will offer Goods from its retail stores locations as mutually agreed by the parties in accordance with terms set forth in the Agreement. Retailer will provide the Seller with an updated list of all Facilities selling Goods.
PAYMENT. Payment shall be made to Seller in the amount of units ordered times wholesale price upon delivery of all Goods described in this Agreement. Seller must provide Retailer with invoice upon delivery of Goods that describes the order, order number, units ordered, price per unit, taxes, and total outstanding payment to be made by Seller.Payment terms for Goods purchased hereunder shall be net fifteen (15) days following the latter of the date of invoice.If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 12 percent per year, or the maximum percentage allowed under applicable laws, whichever is less. Retailer shall pay all costs of collection, including without limitation, reasonable attorney fees.In addition to any other right or remedy provided by law, if Retailer fails to pay for the Goods when due, Myostorm has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies.
DELIVERY. Time is of the essence in the performance of this Agreement. Seller will make the Goods available to ship to Retailer 5 business days after receipt of a Purchase Order.WARRANTIES. The Goods are sold on an "AS IS" basis. Myostorm SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF Myostorm HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Myostorm agrees to indemnify, hold harmless, and protect the Retail user, its affiliates, successors, assignees, customers, and users from any and all claims, demands, suits at law or equity, and all expenses including attorneys' fees, involving infringement or alleged infringement of any patent, trademark, or copyright resulting from the purchase, use, or sale of the Goods.
INSPECTION. The Retailer, upon receiving possession of the Goods, shall have a reasonable opportunity to inspect the Goods to determine if the Goods conform to the requirements of this Agreement. If the Retailer, in good faith, determines that all or a portion of the Goods are non-conforming, the Retailer may return the Goods to the Seller at the Retailer's expense. The Retailer must provide written notice to the Seller of the reason for rejecting the Goods. The Seller will have 60 days from the return of the Goods to remedy such defects under the terms of this Agreement.
INTELLECTUAL PROPERTY. Retailer shall obtain no right, title or interest in or to any of the proprietary rights of the Seller, Goods manufacturers or their licensors, including without limitation, rights in or to the trademarks, trade names, slogans, logos, copyrights and patents owned, registered, pending registration or used by any of them. Any such use of such intellectual property shall be by prior written consent and according to policies and guidelines communicated by the Seller.
TERMINATION. This Agreement is perpetual but may be terminated as to any party, for or without cause, upon 30 days written notice to the other.
DEFAULT. The occurrence of any of the following shall constitute a material default under this Agreement:a. The failure to make a required payment when due.b. The insolvency or bankruptcy of either party.c. The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.d. The failure to make available or deliver the Goods in the time and manner provided for in this Agreement.e. Selling Goods in authorized sales channels.
REMEDIES ON DEFAULT. In addition to any and all other rights available according to law, if either party defaults by failing to substantially perform any material provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may elect to cancel this Agreement if the default is not cured within 30 days after providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. If Retailer is found to be in default, Retailer shall pay the Seller any loss in sales attributed to the unauthorized behavior plus any legal, finance, and accounting fees associated with identifying, removing, and dealing with the unauthorized behavior.
FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures.The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
ARBITRATION. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties.All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served.The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
CONFIDENTIALITY. Both parties acknowledge that during the course of this Agreement, each may obtain confidential information regarding the other party's business. Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. Upon request by an owner, all documents relating to the confidential information will be returned to such owner.
DUTY TO COOPERATE. The Retailer will cooperate with any requests from the Seller regarding governmental inquiries or investigation requests.
NOTICES. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered or signed for, or on the third day after mailing if not signed for.
ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.AMENDMENT. This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.
SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Utah. By continuing with Retailer Account creation, user agrees to the terms and conditions set forth herein.