SOUTHERN GROUND AUDIO, LLC
TERMS AND CONDITIONS FOR RETAIL ACCOUNTS
The following are the terms and conditions (“Terms and Conditions”) on which DemerBox agrees to make available DemerBox products (“Products”) to retailers (“Retailer”). Only retailers who have submitted an application for a retail account and whose applications have been approved by an officer of DemerBox are eligible to order Products. By submitting an order to DemerBox, Retailer agrees to and accepts these Terms and Conditions with respect to all transactions with DemerBox and further agrees that any conflicting or additional terms contained in any purchase order or other documentation sent to DemerBox are rejected by DemerBox unless approved in writing by an officer of DemerBox.
- RESALE OF PRODUCTS; MINIMUM ADVERTISED PRICE
- Retail Sale Only - Products are sold to Retailer strictly for resale to consumers purchasing for their own personal use and not for resale or distribution to other retailers or wholesalers.
- Territorial Restriction - Retailer may resell and distribute the Products solely from the retail location or locations listed in Retailer’s application and solely to consumers taking delivery of the Products within the United States and its possessions. Without limiting the foregoing, Retailer may not: (a) distribute any Products to any person or entity if Retailer knows or has reason to believe that such person or entity intends to resell or redistribute such Products, or (b) market or distribute Products from any location outside of the United States and its possessions.
- Online Sales - Retailer may not sell, or offer to sell, Products through any online site other than Retailer’s own retail site; provided further that Retailer shall be permitted to advertise and sell Products through online “auction” sites and/or online “classified” sites so long as such sales are strictly in compliance with paragraph 1.4 below (i.e., no “best offer” or “auction” type sales that result in the advertising of Products at less than the “minimum advertised price”).
- Minimum Advertised Price - Retailer may not advertise (whether in print, electronic, television, radio or other media) any Product for sale at a price below DemerBox’s “minimum advertised price” as currently published by DemerBox. Retailer will take reasonable precautions to prevent any price below the then-current Minimum Advertised Price from being detected and published by any Internet search engines or price scraper program.
- Trademarks - Retailer may use the trademarks and logos of DemerBox solely to identify itself as authorized to resell the Products and to advertise the Products as permitted herein; provided, however, that Retailer complies with DemerBox’s then-current published trademark guidelines in all such usages, as such guidelines may be revised from time to time.
- Marketing Material - All DemerBox product displays and other “point of purchase” materials provided by DemerBox remain the property of DemerBox and Retailer agrees to return such materials promptly on DemerBox’s request.
- PRICE; SHIPPING; RETURNS
- Price - Products are sold at DemerBox’s then-current “dealer” price, as stated in the Price List (the "Price List"), in effect on the date Retailer's order is accepted by DemerBox. DemerBox may, in its sole discretion, revise the Price List from time to time. Shipment of all Products shall be F.O.B. origin and risk of loss or damage to all Products shall pass to Retailer upon delivery by DemerBox to the carrier selected for shipment. Orders for Products shall also be subject to such handling and/or processing charges as are stated in the Price List. All past due balances shall bear interest at a rate of one and one-half percent (1.5%) per month until paid in full.
- Orders - Orders for Products must be initiated by written purchase order, facsimile or telephone and must be prepaid by Retailer by bank or cashier’s check, Visa or MasterCard, or for Retailers with credit in good standing, will be shipped on Net 30 terms, and are subject to acceptance by DemerBox. DemerBox has no obligation to accept any order from Retailer. In addition, DemerBox may withhold shipment of or cancel accepted orders if DemerBox has reason to believe that Retailer is not strictly in compliance with these Terms and Conditions.
- Taxes - All prices are exclusive of all taxes, duties, surcharges or other charges levied or imposed by any governmental authority and required to be collected from Retailer.
- Returns - No return will be accepted unless a return merchandise authorization (“RMA”) number has been issued by DemerBox. Returns (other than those described in paragraph 4.1 below, i.e., due to a defect in workmanship) are subject to a ten percent (10%) restocking fee.
- ACCEPTANCE; PRODUCT WARRANTY
- Acceptance - Retailers have a period of ten (10) days after delivery of any Product within which to report any defects in workmanship. If Retailer notifies DemerBox within such ten-day period of a defect in workmanship which was not caused by the shipper, DemerBox will promptly, at its option and as Retailer’s exclusive remedy, either replace the defective Product (in which case Retailer will have an additional ten-day period within which to report any defects in the replacement Product) or refund the purchase price paid by Retailer. All Products are deemed “accepted” by Retailer if notice of a defect in workmanship is not received by DemerBox within such ten-day period. Damage incurred in shipping must be reported promptly to the shipper and to DemerBox.
- Product Warranty - All Products sold to consumers by an approved Retailer are subject to DemerBox’s Limited One Year Warranty as published by DemerBox. Retailer may not misrepresent the terms of DemerBox’s Limited One Year Warranty to any consumer, nor modify, or purport to modify, any warranty terms on behalf of DemerBox. Retailer may not accept Products for warranty replacement or repair on DemerBox’s behalf. All requests for warranty repair or replacement from a consumer shall be directed to DemerBox.
- Disclaimer of Warranties - Retailer’s sole remedy for any defects in any Product is as stated in paragraph 4.1 above. THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY NATURE, EXPRESS OR IMPLIED, RESPECTING THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS RESPECTING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
- LIMITATION OF LIABILITY
- Disclaimer of Consequential Damages – DEMERBOX SHALL NOT BE LIABLE TO RETAILER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST GOODWILL OR LOSS OF BUSINESS, EVEN IF RETAILER HAS ADVISED DEMERBOX OF THE POSSIBILITY OF SUCH DAMAGES. DEMERBOX SHALL NOT BE BOUND BY OR LIABLE FOR ANY REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN OR ORAL, RESPECTING PRODUCTS MADE BY RETAILER OR ITS AGENTS, EMPLOYEES OR REPRESENTATIVES.
- Limitation of Liability - IN NO EVENT SHALL DEMERBOX’S AGGREGATE LIABILITY TO RETAILER IN CONNECTION WITH ANY PRODUCT PURCHASED EXCEED THE AMOUNTS PAID BY RETAILER FOR SUCH PRODUCT. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL NOT APPLY TO CLAIMS FOR PERSONAL INJURY.
Retailer shall, to the fullest extent permitted by law, indemnify and hold DemerBox harmless from and against all claims, demands, damages, costs, charges, expenses, actions, losses and liabilities of any kind, including, but not limited to, reasonable attorneys' fees and court costs, arising out of or relating to: (a) any breach by Retailer of any of these Terms and Conditions, (b) any warranties or representations made by Retailer respecting any of the Products, and (c) any other acts or omissions of Retailer, its employees, agents, and representatives. The preceding sentence shall not apply to claims, demands, damages, costs, charges, expenses, actions, losses or liabilities caused by the sole negligence, recklessness or intentional misconduct of DemerBox.
These Terms and Conditions, and all disputes arising between DemerBox and Retailer, shall be governed by and construed in accordance with the laws of the State of Georgia. Retailer and DemerBox each agree that any dispute between them shall lie within the exclusive jurisdiction of the state and federal courts located in Fulton County, Georgia and the Northern District of Georgia, respectively, and Retailer consents to the exercise of jurisdiction by any such court. Terms and Conditions constitute the entire agreement between Retailer and DemerBox respecting the subject matter hereof and supersede all prior proposals, agreements, negotiations, representations, writings and all other communications, whether written or oral, between Retailer and DemerBox. If either party shall commence a legal action to collect any amounts due or to enforce any other of these Terms and Conditions, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs and expenses in connection with such action.