Terms Of Sale

Use of the Sportmeds web site is subject to the following terms and conditions. By using the web site or ordering from us you represent and warrant that you have read, understood and accepted these terms and conditions and agree to be bound by them.

All Customer Purchase Orders are subject to these terms and conditions and all additional terms and conditions presented on or accompanying a Sportmeds Quotation or Sportmeds Order Acknowledgment. Sportmeds specifically rejects, and the Customer disclaims all printed provisions in the Customer's printed Purchase Orders including associated forms and/or documents. These terms and conditions, together with the Sportmeds Order Acknowledgment shall constitute the entire agreement between and the Customer with respect to any Customer Purchase Order and the Products and/or Services provided hereunder. These terms and conditions supersede any prior or contemporaneous agreements or representations written or oral. Any amendment of these terms and conditions must be in writing and signed by Sportmeds to be binding on Sportmeds .

Sportmeds reserves the right, at its discretion, to update or revise these Terms. Please check these Terms periodically for changes. Your continued use of the web site following the posting of any changes to the terms and conditions indicates your acceptance of those changes

1. ACCEPTANCE OF PURCHASE ORDERS

As used herein, "Acceptance of Customer's Purchase Order" shall mean Sportmeds's agreement, as evidenced by the issuance of an Order Acknowledgment, to supply the Products and/or Services identified in the Customer's Purchase Order under the terms and conditions herein. All Customer Purchase Orders are subject to written acceptance by Sportmeds , at its sole discretion, even if received elsewhere by a salesperson, selling agent or representative. No Customer Purchase Order will be binding upon Sportmeds until Sportmeds issues its written Order Acknowledgment.

2. PRICE OF PRODUCTS AND/OR SERVICES

The price for Products and/or Services are based on Sportmeds's published list prices in effect at time of Sportmeds's receipt of the Customer's Purchase Order unless otherwise set forth in the Order Acknowledgment, or a valid issued Quotation. A Quotation is valid for a period of ten [10] days from date of issue. Errors or omissions in price are subject to correction by Sportmeds .

All published list prices are subject to change by Sportmeds without notice. Sportmeds retains all rights to change the Products and/or Services or may discontinue any Products and/or Services at Sportmeds's sole discretion.

3. PACKAGING, SHIPMENT AND SERVICE DATES

All Products shall be suitably packed for shipment. Sportmeds may charge for special packing and/or packaging including special documentation to comply with Customer requirements.

Shipment Date for Products or date for performance of Services are estimated by Sportmeds but are not guaranteed by Sportmeds . Shipment within the continental United States are made FOB Sportmeds shipping location with all international shipments made FCA Sportmeds shipping location (Incoterms 2000).

The Customer, regardless of the circumstances, will not hold Sportmeds liable for any liabilities, penalties, or charges of any nature due to the late delivery of any Product or the late performance of any Service date. Sportmeds assumes no liability for any direct or liquidated damages during shipment or delivery of Products.

In the event of shipment delay requested by the Customer or a delay caused by lack of shipping instructions, Sportmeds will store all Products covered thereby at the Customer's risk and expense.

4. TITLE, RISK OF LOSS AND INSURANCE

Title, risk of loss, damage and insurance responsibilities for the Products pass from Sportmeds to the Customer upon acceptance of Products by the shipping agent or carrier at Sportmeds's shipping location.

5. ACCEPTANCE OR REJECTION OF PRODUCTS/SERVICES

After the Delivery of the Products, or the performance of Services, the Customer will inspect the Material and/or Services for conformity to the Purchase Order within a period of three [3] calendar days (hereinafter "Acceptance Period"). Acceptance of Products and/or Services by Customer shall automatically occur after the passage of the Acceptance Period stated herein unless Sportmeds is advised otherwise in writing within the stated Acceptance Period or upon Customer's commercial use of the Products and/or Services.

If any Products or Service do not substantially conform to the applicable Purchase Order, the Customer shall notify Sportmeds in writing of the nonconformance, and for Products, obtain an authorization for return, and return such Products to Sportmeds for replacement. With respect to Services, Sportmeds shall, at no additional charge (if determined by Sportmeds to be Sportmeds's fault), take prompt action to correct such unsatisfactory Services.

6. PAYMENT TERMS

Invoices for Products are required to be paid in full in accordance with the terms agreed to at the time the Customers account is established .

If the Products ordered are not ones which are a standard Sportmeds Product offering, Sportmeds may require full or partial payment with receipt of the Customer's Purchase Order.

Late charges of one and one-half percent [1 1/2%] or the maximum permitted by law, whichever is less, per month on outstanding balances may be charged. All amounts due shall be payable in Canadian dollars unless otherwise specifically agreed upon in Sportmeds's Order Acknowledgement.

7. INABILITY TO SUPPLY

There may be instances where, even after Sportmeds has issued an Order Acknowledgment , that Sportmeds is unable to supply a Product listed on the Customer's Purchase Order. In such cases the Customer's purchase price will be refunded in full.

8. PRODUCT AND SERVICES WARRANTY

All Products are supplied "AS IS" without any representation as to quality or fitness for pur pose. the Customer will look solely to the warranties and remedies, if any, provided by the manufacturer thereof.

No agent, distributor, or representative is authorized to make any warranties on behalf of Sportmeds or to assume for Sportmeds any other liability in connection with any Product or Services.

9. RETURNS

Products may not be returned to Sportmeds without prior authorization. Customer must contact Sportmeds to obtain an authorization number and return the Products to the location designated by Sportmeds with all transportation charges paid by the Customer. Sportmeds may charge the Customer certain fees for Products returned to Sportmeds . Any Products returned to Sportmeds without proper authorization will be returned to the Customer at Customer expense.

10. DISCLAIMER OF LIABILITY

Sportmeds WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER , WITH THE EXCEPTION OF BODILY INJURIES, DEATH OR TANGIBLE PROPERTY DAMAGE CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF Sportmeds. THIS LIMITATION APPLIES TO ALL PRODUCTS AND SERVICES PERFORMED.

IN NO EVENT SHALL Sportmeds BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF REVENUE OR PROFIT AND Sportmeds FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR INDIRECT, INCIDENTAL , SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES.

IF ANY REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE, OR IN ANY OTHER EVENT, Sportmeds'S AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE DEPRECIATED VALUE OF THE AFFECTED PRODUCT OR THE ACTUAL AMOUNT PAID TO Sportmeds FOR SERVICES.

11. ASSIGNMENT

Sportmeds may assign its rights and obligations by giving Customer written notice thereof but without being obligated to obtain Customer's consent prior thereto. In the event if an assignment, Sportmeds shall be discharged of any liability pursuant to those Purchase Orders which have been assigned or delegated.

Customer may not assign its rights nor delegate its obligations under any or all of its Purchase Orders unless Sportmeds 's written consent is obtained prior thereto and any such assignment or delegation without such consent shall be void.

12. COMPLIANCE WITH APPLICABLE LAWS

The Customer will comply with all applicable laws affecting the purchase and use of Products. Customer agrees to maintain all registrations with governmental agencies, commercial registries, chambers of commerce, or other offices which may be required under law in order to import, possess and sell Products and must provide proof of same if requested by Sportmeds .

When required, the Customer will comply with Canadian laws applicable to the use, sale or license of Products, including but not limited to the Food and Drug Act.

13. SEVERABILITY

If any provision of these terms and conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity , illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions but rather these terms and conditions shall be construed as if it did not contain the particular invalid, illegal or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly.

14. FORCE MAJEURE

Sportmeds is not liable for failure or delay in fulfilling its obligations due to any causes beyond its control. In the event of any such delay, the date for shipment or performance of Services will be extended correspondingly. Sportmeds retains the right to determine the allocation of its inventory of Products among itself, its present and future customers and the Customer . If an event of force majeure prevents or delays Sportmeds's performance for more than six [6] months , Sportmeds shall have the right to terminate the applicable Purchase Order, with immediate effect.

15. GOVERNING LANGUAGE

The parties hereby confirm that they have agreed that all written documents between them be prepared in the English language only and such language shall be the governing language.

Les parties aux presentes confirment qu'elles ont agreé que tous les documents entre eux par écrit soit redigé dans la langue anglaise seulement, et telle langue sera la langue de contrôle.

16. GOVERNING LAW/VENUE

The contract created by the issuance of an Order Acknowledgment shall be construed, interpreted and applied in accordance with the internal laws (but not the law of conflicts) of the jurisdiction in which is located the main office of the Sportmeds affiliate which is authorized to issue the Order Acknowledgment and any applicable law of that jurisdiction and Canada. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the sale of Products hereunder.

The Customer hereby irrevocably consents to the exclusive personal jurisdiction of any provincial court of general jurisdiction of the jurisdiction in which is located the main office of the Sportmeds affiliate which is authorized to issue the Order Acknowledgment. If Customer institutes any legal proceeding in any other court, it shall assume all of Sportmeds 's costs in connection therewith, including reasonable attorney's fees. Registered or certified mail of any legal process shall constitute lawful and valid service of process in any such proceeding, suit or controversy.

17. PUBLICITY

Except for Customer's internal use of Sportmeds's trademarks, Customer will not use any Sportmeds trademark or trade name for any other purpose whatsoever without the express written consent of Sportmeds .

18. SURVIVAL OF TERMS

The termination or cancellation of any Customer Purchase Order or any relationship created hereunder between the parties or the delivery of Products or performance of Services under Customer's Purchase Order shall not affect each party's obligations and rights under these terms and conditions, which by their nature, survive, notwithstanding such termination, cancellation, delivery or performance.

19. TAXES

In addition to the Price for Products or Services paid by the Customer, the Customer will pay Sportmeds the amount of all taxes, excises, or other governmental charges that Sportmeds may be required to pay with respect to the sale or transportation of any Products delivered hereunder, including the performance of any Services, except taxes on or measured by Sportmeds's net income. If Customer claims exemption from any taxes, Customer will provide Sportmeds with documentation required by the taxing authority to support the exemption

20. WAIVER

No waiver will be valid unless in writing, signed by an authorized representative of Sportmeds and no waiver granted will release Customer from subsequent strict compliance herewith.

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©2006 Sportmeds Inc.

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