Last Revised May 13, 2022
THESE TERMS ESTABLISH AN AGREEMENT WITH YOU, AND YOU AGREE TO BE BOUND BY THESE TERMS WHEN YOU ORDER, PAY FOR OR RECEIVE ANY PRODUCT THAT WE SELL OR DISTRIBUTE. NOTE: THESE TERMS INCLUDE A WAIVER OF THE RIGHT TO A JURY TRIAL.
- Introduction. These Sales Terms (“Terms”) constitute the entire agreement between you and Elite Outdoors LLC d/b/a The Outdoor Group Sales and Distribution (“our,” “us,” or “we”) with respect to all products and services that are sold, distributed or otherwise provided by us or our affiliates (collectively, “Products”).
- Order Terms. These Terms incorporate the pricing terms and other provisions of any ecommerce webpage, online store, quote, invoice, order confirmation or Owner’s Manual (defined below) that are provided in connection with the applicable Product by us or our affiliates (collectively, “Order Terms”).
- Shipment and Risk of Loss. Unless the Order Terms expressly provide otherwise, (a) you will be responsible for the cost of shipping the applicable Product to your destination, and (b) the entire risk of loss and damage to the applicable Product will pass to you when you or your courier takes possession of the Product.
- Return and Refund Policy. Except to the extent the applicable Order Terms expressly give you the right of return and refund, no Product will be returnable nor will any payment for any Product will be refundable. If the Orders Terms do set forth such right, you must comply with the return procedures described in such Order Terms to be eligible to return the Product for a refund.
- Limited Warranty. For certain Products, the applicable Order Terms may expressly set forth a warranty and a warranty period, which will begin on the date such Product is shipped to you (“Warranty Period”). Except to the extent that such Order Terms provide otherwise, we warrant that any such Product will be free from defects in materials and workmanship during the Warranty Period; provided, however, that such warranty will not apply to or cover: (a) any damage caused by: (i) usage that does not comply with or otherwise conform to our owner’s manual, user’s manual, operation instructions, data sheets and other documentation provided by us in relation to such Product (collectively, “Owner’s Manual”); (ii) the failure to perform preventive maintenance; (iii) misuse, abuse, vandalism, accident, fire, theft, disappearance, or reckless, willful or intentional conduct; (iv) the use of any accessory, device, part, component or material not provided by us; or (v) any repair not performed or authorized by us; (b) minor imperfections that do not materially alter functionality; (c) minor cosmetic damage that does not affect functionality; (d) normal wear and tear; or (e) such Product if our serial number is missing, altered or defaced. To be eligible for the repair or replacement of any such Product, you must perform any eligibility requirements described in such Order Terms, and you must provide us with written notice of your warranty claim within the Warranty Period. TO THE EXTENT PERMITTED BY APPLICABLE LAW, (A) WE MAKE NO WARRANTIES OF ANY KIND FOR ANY PRODUCT EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, AND (B) WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
6.1 Safety and Legal Compliance. At all times, you will use the Products in accordance with the applicable Owner’s Manuals, including the safety information, prohibitions and precautions set forth in the Owner’s Manuals. You will not use any Product in a manner that violates any law.
6.2 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES FOR LOSS OF PROFITS OR REVENUE, PROPERTY DAMAGE, INJURY, HARM OR DEATH) INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR USE OF ANY PRODUCT, AND (B) OUR MAXIMUM LIABILITY TO YOU FOR ALL DAMAGES ARISING OUT OF OR RELATED TO ANY PRODUCT, REGARDLESS OF THE FORM OF LEGAL ACTION THAT IMPOSES LIABILITY (WHETHER IN CONTRACT, EQUITY, NEGLIGENCE, INTENDED CONDUCT, TORT OR OTHERWISE) WILL BE LIMITED TO THE TOTAL PRICE THAT YOU PAID TO US FOR SUCH PRODUCT.
6.3 Indemnification. You agree to indemnify, defend and hold harmless, us, our parents, subsidiaries, affiliates, licensors, licensees, suppliers, retailers, distributors, contractors, equity holders, officers, directors, employees and agents, from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys' fees and costs, relating to or arising out of: (a) any harm, injury, death, property damage or loss caused by the use or misuse of any Product that we sell or supply to you; (b) your violation of these Terms; (c) your violation of applicable law; or (d) your negligence, recklessness or intentional wrongdoing. Upon our request, you will promptly reimburse us for our damages, losses, costs and expenses relating to or arising out of such claims. You will cooperate as fully as requested in our defense of any such claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any claim subject to indemnification by you, and you will not in any event settle any claim without our prior written consent.
6.4 Severability. If any part or provision of these Terms is found to be unenforceable under applicable law, such part or provision will be modified to make these Terms, as modified, legal and enforceable. The balance of these Terms will not be affected.
6.5 Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of laws principles.
6.6 Binding Arbitration. In the event of any dispute, controversy, claim or legal action arising from, under, out of, relating to, or in connection with any Product or these Terms, their interpretation or validity, or the breach of these Terms (“Dispute”), we and you (“Parties”) will each have the right to submit the Dispute to the American Arbitration Association (“AAA”) for binding arbitration and resolution. The arbitration will be administered by the AAA’s Consumer Arbitration Rules, subject to the terms of this Section. The Dispute will be resolved exclusively and finally by the AAA. The Parties will agree upon another arbitration forum if the AAA ceases all of its operations. The arbitration will be conducted by and before three (3) arbitrators. The Parties will confer to mutually select the arbitrators. If the Parties are unable to agree upon the arbitrators within thirty (30) days after the Dispute is submitted to the AAA, the AAA will independently assign the arbitrators. The arbitrators will apply the laws of the State of New York and no other state, excluding its conflict of law principles. The arbitrators will not have the right to award treble damages, punitive damages or attorneys’ fees to either Party. THE PARTIES HEREBY FORFEIT THEIR RIGHT TO FILE AND LITIGATE A LAWSUIT IN A COURT OF LAW RELATING TO ANY DISPUTE, WAIVING THEIR RIGHT TO A TRIAL BY JURY. Neither the arbitration, nor any portion thereof, will be consolidated with any other arbitration, nor will the arbitration be conducted on a class-wide or class action basis. The location of the arbitration will be exclusively within Rochester, New York. The decision or award rendered in the arbitration will be final and binding on the Parties, and judgment may be entered thereon in any federal or state court having jurisdiction. This Section will be governed by the Federal Arbitration Act (Title 9 U.S. Code Section 1 et. seq.). The contact information of the AAA may be obtained online at www.adr.org.
6.7 Assignment. Neither Party may assign these Terms, in whole or in part, to any third party without the prior written consent of the other Party; provided, however, that we may assign these Terms, in whole or in part, to any of our affiliates or to any third party in connection with an asset sale, merger, corporate reorganization, contractual assignment or other transaction. Any purported assignment in violation of this Section will be null and void. These Terms will be binding on the Parties and their respective successors and permitted assigns.
6.8 Entire Agreement. These Terms, including the Order Terms, forms the entire and complete agreement between the Parties, and these Terms supersede all prior or contemporaneous agreements or representations, written or oral, regarding the subject matter of these Terms.
End of Sales Terms
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