TERMS AND CONDITIONS
A. Use. This document governs your relationship with [ JMG Enterprises, LLC ] (the “Company”) and [www.TreeGlitter.com] (the “Website”). Access to and use of the Website and the products and services available through the Website (collectively, the “Products”) are subject to the following terms, conditions and notices (the “Terms of Service”). By using the Products, you are agreeing to all of the Terms of Service, as may be updated by us from time to time.
B. Access. Access to the Website is permitted on a temporary basis, and the Company reserves the right to withdraw or amend the Products without notice. The Company shall not be liable if for any reason the Website is unavailable at any time or for any period. From time to time, the Company may restrict access to some parts or all of the Website.
2. Prohibitions. By use of the Website, you agree you shall not; (i) commit or encourage a criminal offense; (ii) transmit or distribute a virus, trojan, worm, logic bomb or any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene; (iii) hack into any aspect of the Service; (iv) corrupt data; (v) cause annoyance to other users; (vi) infringe upon the rights of any other person’s proprietary rights; (vii) send any unsolicited advertising or promotional material, commonly referred to as “spam”; or (viii) attempt to affect the performance or functionality of any computer facilities of or accessed through the Website. Violation of this Section 2 shall constitute a criminal offense and the Company will report any such violation to relevant law enforcement authorities and disclose your identity to them.
The Company shall not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Website or to your downloading of any material posted on it, or on any Linked Sites.
3. Intellectual Property, Software and Content. The intellectual property rights in all software and content (including photographic images) made available to you on or through the Website remains the property of the Company or its licensors and are protected by copyright laws and treaties around the world. All such rights are reserved by the Company and its licensors. You are not permitted to publish, manipulate, distribute or otherwise reproduce, in any format, any of the content or copies of the content supplied to you or which appears on the Website nor may you use any such content in connection with any business or commercial enterprise.
4. Terms of Sale.
A. Formation of Contract. An order on the Website shall be deemed by the Company to be an offer to purchase, which the Company may accept or reject in its sole discretion. The Company’s acceptance of an offer to purchase is binding on the Company only if made by written instrument or, if not by written instrument, by shipment of the products ordered (and acceptance by shipment shall only be binding as to the portion of the order actually shipped by the Company). Any automatic or computer generated response to an order by the Company or otherwise shall not be deemed acceptance of an order. The Company’s acceptance is subject to the Terms of Service.
B. Payment. Upon receiving your order the Company shall carry out a standard authorization check on your payment card to ensure there are sufficient funds to fulfil the transaction. Payment for all orders shall be made through PayPal.com (“PayPal”). Due to PayPal’s Seller Policies, the Company may not change or alter a shipping address after payment has been received. The charge for any payment shall appear as “LASERXMAS” on your bank or credit card statement.
C. Cost of Delivery, Taxes, and Other Charges. You are responsible for the costs of delivery of the products. You shall pay all sales, use, excise or similar taxes, or other charges, which the Company is required to pay, or to collect and remit, to any Government (national, state or local) and which are imposed on or measured by the sale.
D. Transfer of Property and Risk of Loss. The Company retains the right and title to the products sold to you until the Company is paid in full for the products. You shall obtain the right and title to the products upon payment to the Company of the purchase price and any taxes, excise or other charges. The risk of loss, including, but not limited to the risk of loss, theft, damage or destruction of the products, transfers to you F.O.B. Company’s warehouse.
E. No Set-Off. You shall have no right of set-off or withholding, and no deduction of any amounts due to the Company shall be made without the Company’s prior, express written approval.
F. Inspection. You agree to inspect the products promptly upon receipt for non-conformity (including but not limited to non-conformity for quantity, quality, and/or defects). Failure by you to provide the Company with written notice of a claim within Ten (10) days from the date of delivery or, in the case of non-delivery, from the date fixed for delivery, shall constitute a waiver by you of all claims with respect to such products.
G. Excuse for Non-Performance. If the manufacture, transfer or receipt by either party of any products covered hereby is prevented, restricted or interfered with by reason of any event beyond the reasonable control of the party so affected, such party shall be excused from making or taking deliveries hereunder to the extent of such prevention, restriction or interference, and neither party shall be liable to the other for default or delay in performing, except with respect to your payment obligations.
5. Patents. The Company reserves the right to discontinue deliveries of any products, the manufacture, sale or use of which would, in the Company’s opinion, infringe upon any U.S. or worldwide patent, trade mark or design now or hereinafter issued, registered, or existing and under which the Company is not licensed.
6. DISCLAIMER OF WARRANTIES. THE WARRANTIES SET FORTH HEREIN OR IN THE COMPANY’S WARRANTY DOCUMENTS, IF ANY, WITH RESPECT TO A PRODUCT ARE THE ONLY WARRANTIES MADE BY THE COMPANY IN CONNECTION WITH THE PRODUCTS AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS SALE. THE COMPANY MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO YOU OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE COMPANY IN WRITING. THE COMPANY’S SOLE OBLIGATION FOR A REMEDY TO YOU SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS. YOU ASSUME ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.
7. Limitation of Liability. No claim by you of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of product delivered or non-delivery, shall be greater in amount then the purchase price for the products in respect of which damages are claimed. IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE PRODUCTS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
8. Indemnification. You hereby agree to indemnify, defend and hold harmless the Company, its directors, officers, employees, consultants, agents, and affiliates, from any and all third party claims, liability, damages and/or costs (including, but not limited to, legal fees) arising from your use this Website or your breach of the Terms of Service.
9. Variation. The Company shall have the right in its absolute discretion at any time and without notice to amend, remove or vary the Products and/or any page of the Website.
10. Company’s Rights. If you should fail in any manner to fulfill the terms and conditions hereof, the Company may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to the Company. If for any reason, the quantities of the products covered hereby or of any materials used in the production of the products reasonably available to the Company shall be less than the Company’s total needs for its own use and for sale, the Company may allocate its available supply of products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner the Company deems proper in the Company’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this Agreement.
11. Governing Law. This Agreement is made in the State of Washington in the United States of America and shall be governed, construed, and the respective rights and duties of the parties shall be determined, according to the laws of the State of Washington, without giving effect to its principles of conflicts of laws of such state, and shall be binding upon the parties hereto in the United States and worldwide. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
12. Dispute Resolution. Any dispute, controversy or claim arising out of or related in any way to these Terms of Service and/or any sale and purchase of products hereunder or any transaction contemplated hereby which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in King County in the State of Washington. The language of the arbitration shall be English. The arbitrator(s) will be bound to adjudicate all disputes in accordance with the laws of the State of Washington. The decision of the arbitrator(s) shall be in writing with written findings of fact and shall be final and binding on the parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award incidental damages, consequential damages, indirect damages, statutory damages, special damages, exemplary damages, punitive damages or specific performance. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to these Terms of Service. For purposes of Section 7, Article 25 of the Brussels 2012 Convention, this Section 12 is a binding Choice of Court Agreement.
13. Attorney Fees. If either party incurs any legal fees associated with the enforcement of these Terms of Service or any rights or obligations under these Terms of Service, the prevailing party shall be entitled to recover its reasonable attorney fees and costs and any court, arbitration, mediation, or other litigation expenses from the other party.
14. Assignment. These Terms of Service is not transferable by either party without the prior written consent of the other party, except that the Company may assign these Terms of Service without your consent if the assignment is to a to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of the Company’s assets.
15. Compliance With Laws; Export Laws. The parties shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of these Terms of Service. You agree to adhere to all applicable U.S. Export laws and regulations with respect to the products.
16. Invalidity. If any part of these Terms of Service is unenforceable, the enforceability of any other part of these Terms of Service shall not be affected and all other clauses shall remain in full force and effect, including but not limited to the provisions contained in Paragraphs 11 and 12 herein. So far as possible, where any clause/sub-clause or part of a clause/sub-clause can be severed to render the remaining part valid, the clause shall be interpreted accordingly. Alternatively, you agree that the clause shall be rectified and interpreted in such a way that closely resembles the original meaning of the clause/sub-clause as is permitted by law.
17. Force Majeure. If either party shall be prevented from performing any portion of these Terms of Service by causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, such defaulting party shall be excused from performance for the period of the delay and for a reasonable time thereafter. Each party shall use reasonable efforts to notify the other party of the occurrence of such an event within Three (3) business days of its occurrence. Lack of financial resources on the part of either party shall not be a force majeure event under this Agreement.
18. Miscellaneous. These Terms of Service are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated by this sale, notwithstanding any other terms that might be contained in any purchase order or other document received from you or submitted to the Company. These Terms of Service constitute the entire agreement between the parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representatives of both parties. No waiver by the Company of any of the Terms of Service or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Terms of Service. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Terms of Service.