THESE TERMS AND CONDITIONS GOVERN THE SALE OF ALL PRODUCTS AND SERVICES ("PRODUCTS AND SERVICES") BY BIG FUNDRAISING IDEAS AND ITS DIVISIONS AND SUBSIDIARIES ("SELLER") AND APPLY NOTWITHSTANDING ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN ANY PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION ("PURCHASE ORDER") FROM BUYER. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. NEITHER SELLER'S ACKNOWLEDGMENT OF A PURCHASE ORDER NOR SELLER'S FAILURE TO OBJECT TO CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN A PURCHASE ORDER SHALL BE DEEMED AN ACCEPTANCE OF SUCH TERMS AND CONDITIONS OR A WAIVER OF THE PROVISIONS HEREOF.
1. FORCE MAJEURE. Seller shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources. Seller's time for performance of any such obligation shall be extended for the time period of such delay or Seller may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to Buyer.
2. WARRANTY/LIMITATION OF LIABILITY:
(1) SELLER HEREBY ASSIGNS TO BUYER ALL MANUFACTURER WARRANTIES WITH RESPECT TO ANY GOODS OR MERCHANDISE PROVIDED TO BUYER. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO SUCH EQUIPMENT OR GOODS OR MERCHANDISE.
(2) BUYER AGREES AND ACKNOWLEDGES THAT ALL PERFORMERS AND THEIR AFFILIATES AT REPTILE SHOWS, MAGIC SHOWS AND PROVIDERS OF INFLATABLE EQUIPMENT AND ALL OF THEIR RESPECTIVE EQUIPMENT, GOODS, MERCHANDISE, ANIMALS, PROPS OR ANY ITEMS USED BY OR IN CONNECTION WITH ANY INCENTIVE EVENTS ARE BEING PROVIDED BY INDEPENDENT CONTRACTORS. AND BUYER DOES HEREBY AND FULLY AND FOREVER RELEASE, ACQUIT AND DISCHARGE SELLER AND ITS SUCCESSORS, ASSIGNS, REPRESENTATIVES, AGENTS AND EMPLOYEES FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION AND SUITS, WHICH THEY MAY NOW HAVE OR HEREAFTER HAVE OR CLAIM TO HAVE, AND WHETHER THE SAME BE NOW KNOWN OR NOT KNOWN AT THIS TIME, AGAINST SELLER, INCLUDING WITHOUT LIMITATION, ANY CLAIMS RELATING TO ANY ACT OR OMISSION OF AN INDEPENDENT CONTRACTOR. THE PROVISIONS OF THIS PARAGRAPH SHALL REMAIN AND BE IN FULL FORCE AND EFFECT EVEN IF ANY SUCH CLAIM, DEMAND, CAUSE OF ACTION OR SUIT DIRECTLY OR INDIRECTLY RESULTS FROM, ARISES OUT OF, OR RELATES TO, OR IS ASSERTED TO HAVE RESULTED FROM, ARISEN OUT OF OR RELATED TO, IN WHOLE OR IN PART, ONE OR MORE NEGLIGENT ACTS OR OMISSIONS OF ANY PERSON OR ENTITY RELEASED IN THIS PARAGRAPH, BUT NOT ANY GROSS NEGLIGENCE OR ANY WILLFUL MISCONDUCT OF ANY SUCH PERSON OR ENTITY. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING FROM (1) THE DELIVERY OR USE OF ANY GOODS OR MERCHANDISE, (2) BUYER'S INABILITY TO USE ANY GOODS OR MERCHANDISE EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER GOODS OR MERCHANDISE, (3) OR ANY OTHER CAUSE, INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION, OR LOSS OF REVENUE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. AMENDMENT AND WAIVER. This agreement may not be amended except by an instrument in writing signed by all parties.
4. PARTIES IN INTEREST. This agreement will be binding upon, will inure to the benefit of, and will be enforceable by the respective successors and assigns of the parties.
5. ENTIRE AGREEMENT. This agreement, including any exhibits, schedules, or other documents referred to in this agreement or delivered pursuant to this agreement, contains the entire understanding of the parties with respect to its subject matter.
6. HEADINGS. The section headings contained in this agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this agreement.
7. NOTICES. All notices and other communications between the parties will be in writing, and will be deemed to have been duly given if personally delivered or mailed (registered or certified mail, postage prepaid, return receipt requested).
8. GOVERNING LAW. This agreement will be governed by the laws of the state of Texas, without regard to its conflict of laws rules.
9. Severability. Any term or provision of this agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
10. FINANCIAL AGREEMENT. The buyer agrees, whether he/she signs as agent, that in consideration of the services to be rendered to the agent, he/she obligates himself/herself to pay the account in accordance with the regular rates. Should the account be referred to a collection agency or an attorney for collections, the undersigned will be required to pay reasonable attorney’s fees and collection fees. The undersigned certifies that he/she has read the foregoing receiving a copy thereof and is the agent or is duly authorized by the agent to execute the above and accepts its terms.
11. SHIPPING POLICY: F.O.B. destination, freight prepaid on first order only. Seller retains title and control of goods until they are delivered to the buyer. The seller selects the carrier and is responsible for the risk of transporting merchandise and filing claims in case of loss or damage. Buyer may incur a minimum order fee on first order only. Subsequent orders are F.O.B. destination, freight collect.
12. PAYMENT POLICY. Payment on brochure sales is due within 5 days of receipt of product. Payment on wholesale ecommerce orders is due within 15 days of receipt of product. A finance charge will be incurred at 1½% per month for late payment.
a. If the buyer has elected to do either a super party, super splash party, magic show or reptile show prize program, the seller's fundraising invoice must be paid in full prior to the date of the event. The seller reserves the right to reschedule any event or place the event on hold until which time the buyer's invoice is paid in full.
b. Some accounts are 'hold for payment' accounts at seller discretion. The buyer of a 'hold for payment' account must pay their invoice in full prior to shipping of product.
c. Acceptable Payment Methods: Brochure Product Orders: Cashier's check, money order or check. Online Wholesale Product Orders: Credit card, purchase order, cashier's check, money order or check. Invoices sent to buyer via email.
d. Return policy
13. CANCELLATION / CHANGE POLICY. Once an agreement is reached between the buyer and the seller and at any point the buyer wishes to cancel or change the agreement for any reason; the buyer agrees to the following terms:
a. There is no charge if cancellation takes place prior to processing and or shipping kickoff supplies to the buyer; which includes, but is not limited to brochures, order forms and envelopes.
b. The buyer agrees to pay the seller a $75.00 cancellation processing fee if cancellation takes place once their kickoff supply order has been processed and/or shipped to the buyer.
c. If the buyer decides to change their brochure order for any reason once their supplies have shipped; which includes, but is not limited to switching a brochure or prize program, they will be charged for the original supplies that will no longer be used unless they are returned to the supplier within 1 week. The buyer is responsible for the shipping. Any charges will be added to their fundraising invoice.