Terms Of Use

Last Updated on Tuesday, 24 August 2010 23:14

1. DEFINITIONS

1.1 "Customer" means the party identified as the Customer in this Agreement to whom  The Fun Side of Sports, LLC may agree to supply Products in accordance with these terms and conditions.

1.2 "The Fun Side of Sports" means The Fun Side of Sports, LLC of 208 Old Barn Lane, Chapel Hill, NC 27517. or any subsidiary or associated company.

1.3 "Products" means goods or services to be provided by The Fun Side of Sports to the Customer in accordance with these terms and conditions.

2. ORDER ACCEPTANCE

2.1 All orders placed with The Fun Side of Sports by the Customer for Products shall constitute an offer to The Fun Side of Sports, under these terms and conditions, subject to availability of the products and to acceptance of the order by The Fun Side of Sport's authorized representative.

2.2 All orders are accepted and Products supplied subject to these express terms and conditions only. No amendment to these terms and conditions will be valid unless confirmed in writing on or after the date hereof by The Fun Side of Sport's authorized representative.

2.3 It is agreed that these terms and conditions prevail over the Customer's terms and conditions of purchase unless these latter terms and conditions are amended by The Fun Side of Sports in writing and signed by The Fun Side of Sports.

3. DISPATCH

3.1 Any time quoted for dispatch is to be treated as an estimate only, but dispatch may be postponed because of conditions beyond The Fun Side of Sports's reasonable control, and in no event shall THE FUN SIDE OF SPORTS be liable for any damages or penalty for delay in dispatch or delivery.

3.2 Risk shall pass to the Customer at the time the Products are dispatched by THE FUN SIDE OF SPORTS or their suppliers. The Fun Side of Sports accepts no liability for loss or damage caused by the carrier.

3.3 If Products have not been received, the Customer must notify The Fun Side of Sports within 7 days of the date of the invoice. If proof of delivery is required, this must be requested within 14 days of the date of the invoice.

4. CANCELLATION AND RESCHEDULING

Subject to clause 8.2, any request by the Customer for cancellation of any order or for the rescheduling of any deliveries will only be considered by The Fun Side of Sports if made at least 12 hours before dispatch of the Products, and shall be subject to acceptance by The Fun Side of Sports at The Fun Side of Sports's sole discretion, and subject to a reasonable administration charge therefore by The Fun Side of Sports. The Customer hereby agrees to indemnify The Fun Side of Sports against all loss, costs (including the cost of labor and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling. The Fun Side of Sports will automatically charge for such costs.

5. PRICING

5.1 Catalogues, price lists and other advertising literature or material as used by The Fun Side of Sports are intended only as an indication as to the price and range of goods offered and no prices, descriptions or other particulars contained therein shall be binding on The Fun Side of Sports. Catalogues, price lists and other advertising literature or material are subject to change without notice.

5.2 All prices are given by The Fun Side of Sports at the time of the order on an ex-works basis and the Customer is liable to pay for transport, packing and insurance. Special offers may have to be ordered direct from The Fun Side of Sports by contacting us.

5.3 All quoted or listed delivery prices are based on the cost to The Fun Side of Sports of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in any way of such costs in respect of Products which have not yet been delivered, the price payable may be subject to amendment without notice at The Fun Side of Sports's discretion.

5.4 All prices are exclusive of General Sales Tax, Value Added Tax and any similar taxes. All such taxes are payable by the Customer and will be supplied in accordance with legislation in force at the tax point date.

6. PAYMENT TERMS

6.1 Payment due at time of order unless otherwise agreed with The Fun Side of Sports. In this case, invoices will be raised and dated by The Fun Side of Sports on the date of order of the Products. Unless otherwise specifically requested and agreed, invoices will be payable by the Customer 7 days from the date of invoice. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the data payable at the rate of 4% per annum above the base rate for the time being of the Wachovia bank. Such interest shall accrue on a daily basis and be payable on demand after as well as before judgment. Most purchases on this site are on cash terms.

6.2 When all prices, taxes and charges due in respect of the Products and any Products supplied previously to the Customer have been paid in full, title to hardware Products only shall pass to the Customer.

6.3 Notwithstanding dispatch and the passing of risk in the Products to the Customer pursuant to Clause 4, or any other provision of these conditions, the property of the hardware Products shall not pass to the Customer until The Fun Side of Sports has received cash or cleared funds payment of the price of the Products and all of the Products agreed to be sold by The Fun Side of Sports to the Customer for which payment is then due.

6.4 Until such time as the property in the Products passes to the Customer, the Customer shall hold the Products as The Fun Side of Sports's fiduciary agent and bailee, and shall keep the Products properly stored, protected and insured and identified as The Fun Side of Sports's property. Until that time the Customer shall be entitled to resell or use the products in the ordinary course of its business, but shall account to The Fun Side of Sports for the proceeds of sale or otherwise of the Products, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or properties of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

6.5 Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and not been resold), The Fun Side of Sports shall be entitled at any time to require the Products be delivered to The Fun Side of Sports and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.

6.6 The Customer's power of sale or right to use such Products shall immediately cease if an Administrative receiver is appointed over all or any part of its assets or if it adjudicated bankrupt or enters liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of the Insolvency Act 1986.

6.7 On termination of the Company's power of sale or right to use the Products the Customer will immediately hold the Products to the order of The Fun Side of Sports.

6.8 The Customer shall not be entitled to pledge or in anyway charge by way of security for any indebtedness any of the Products which remain the property of The Fun Side of Sports, but if the Customer does so, all monies owing by the Customer to The Fun Side of Sports shall (without prejudice to any other right or remedy of the seller) forthwith become due and payable.

6.9 The Fun Side of Sports reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, The Fun Side of Sports reserves the right to withdraw any credit facility such that the whole of the Customer's account becomes due for payment forthwith.

7. SPECIFICATION OF PRODUCTS

7.1 The Fun Side of Sports will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturer's specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. The Fun Side of Sports will use its reasonable endeavors to advise the Customer of any such impending variation as soon as it receives any such notice thereof from the manufacturer or it’s suppliers.

7.2 Unless otherwise agreed, the Products are supplied in accordance with the manufacturer's standard specifications as these may be improved, substituted or modified. The Fun Side of Sports reserves the right to increase its quoted or listed price, or to charge accordingly in respect of any orders accepted for Products of non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of such orders.

8. RETURNS

8.1 The Fun Side of Sports reserves the right to levy an administration charge in respect of the rotation of Products and returns.

8.2 Returns must be made subject to the following:

(a) prior authority having been obtained from The Fun Side of Sports which will be given at The Fun Side of Sports's sole discretion;

(b) within 21 days of the date of the invoice;

(c) subject to stock rotation policy;

(d) the Products must be properly packed;

(e) the Products must be in a saleable condition;

(f) the Products must be returned in the original condition;

(g) the Products must be accompanied by a detailed packing list;

(h) the Product is still covered by warranty (see section 11).

8.3 The Fun Side of Sports reserves the right to reject any Products which do not comply with the conditions set out in clause 8.2.

8.4 If The Fun Side of Sports nevertheless agrees to accept any Products returned which are not in a saleable condition, The Fun Side of Sports reserves the right to charge the cost to the Customer of bringing the Products into a saleable condition.

8.5 The Fun Side of Sports will refund the delivery charge if the return is as a result of an error of The Fun Side of Sports.

9. WARRANTY

9.1 The Fun Side of Sports warrants that it has good title to or license to supply all Products to the Customer.

9.2 If any part of the hardware Products should probe defective in materials or workmanship under normal operation or service, such Products will be repaired or replaced only in accordance with any warranty cover or terms as provided by the manufacturer of the Products PROVIDED THAT no unauthorized modifications to the Product or to the system of which the Product forms part have taken place. The Fun Side of Sports is not responsible for the cost of labor or other expenses incurred in repairing or replacing defective or non-conforming parts.

9.3 If the Products are rejected by the Customer as not being in accordance with the Customer's order pursuant to clause 9.2, The Fun Side of Sports will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. The Fun Side of Sports will not consider any claim for compensation, indemnity or refund under liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the invoiced Products be deducted or set off by the Customer until The Fun Side of Sports has passed a corresponding credit note.

9.4 EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 11, The Fun Side of Sports DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE.

10. INDEMNITIES AND LIMITS OF LIABILITY

10.1 The Fun Side of Sports disclaims and excludes all liability to the Customer in connections with these terms and conditions including the Customer's use of the Products and in no event shall The Fun Side of Sports be liable to the Customer for special, indirect or consequential damage including but not limited to loss of profits arising from loss of data or in connection with the use of the Products. All terms of any nature, express or implied, statutory or otherwise, as to correspondence with any particular description or sample, fitness for purpose or merchantability, are hereby excluded.

10.2 The Customer shall indemnify and defend The Fun Side of Sports and its employees in respect of any claims by third parties which are occasioned by or arise from any The Fun Side of Sports performance or non-performance pursuant to the instructions of the Customer or its authorized representative.

11. TERMINATION FOR CAUSE

This agreement may be terminated forthwith by notice in writing:

11.1 By The Fun Side of Sports if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment as in clause 6.1.

11.2 If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party.

11.3 If either party is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or a reconstruction, or makes an arrangement with creditors or petitions for an administration order or has a Receiver or Manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this Agreement forthwith.

11.4 Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued rights or liabilities of either party.

12. EXPORT AND/OR RE-EXPORT LIMITATION

Having regard to the current statutory or other United Kingdom government regulations in force from time to time and, in the case of Products manufactured in the United States of America, to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the Customer to The Fun Side of Sports of an ultimate destination for any Products, the customer will not export or re-export any Products without first obtaining all such written consents or authorizations as may be required by any applicable government regulations.

12. CONTRACT

12.1 The headings in this Agreement are for ease of reference only and shall not affect its interpretation or construction.

12.2 No forbearance, delay, indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.

12.3 The Customer agrees not to assign any of its rights herein without the prior written consent of The Fun Side of Sports.

12.4 In the event of any of these terms and conditions or any part of them being judged illegal or unenforceable for any reason, the continuation in full force and effect of the remainder of them shall not be prejudiced.

12.5 Neither party shall be liable to the other for any delay in failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from force majeur, act of God, fire, explosion, accident, industrial dispute or any cause beyond its reasonable control.

12.6 Any documents or notices given hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.

12.7 These terms and conditions shall be governed and construed in accordance with the laws of North Carolina. Any dispute will be resolved within the courts of North Carolina.

12.8 These terms and conditions may change from time to time without notice to you. The effect of these changes will take place immediately.