B2B TERMS AND CONDITIONS OF SALE

ACCEPTANCES:  The acceptance by Momentum Management LLC (“Momentum”) doing business as Dynamo Delay of any order is subject to customer’s assent to all of the terms and conditions set forth herein.  Customer’s assent to these terms and conditions shall be presumed from customer’s placement of an order with Momentum or from customer’s acceptance of all or any part of the products ordered.  No additions, amendments or modifications of Momentum’s terms and conditions by customer shall be binding upon Momentum, unless agreed to in writing by an authorized representative of Momentum.  If a purchase order or other correspondence submitted by customer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in Momentum’s acknowledgment, such terms and conditions shall be ineffective.  Momentum’s fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by customer, and will not constitute a waiver by Momentum of any of the terms and conditions contained herein or in Momentum’s acknowledgment.

AGE OF CONSENT.  By purchasing products from Momentum, customer declares that he or she is 18 years of age or above, has the legal right to possess adult products in his or her area or community, will not make any of the products available to minors in any form, and will be fully liable for any legal ramifications that may arise from receiving these products.

PAYMENT AND CREDIT TERMS:  Prepayment for orders shall be required unless a credit agreement is entered into between Momentum and customer prior to order.  If credit is so extended, payment shall be net 30 days from date of invoice unless otherwise stated on invoice or in such credit agreement.  All credit extended by Momentum to customer, and the limits of such credit (including, without limitation, limits on the aggregate open balance and open invoice days), is at Momentum’s sole discretion and may be reduced, changed or revoked by Momentum at any time, for any reason.  Momentum shall charge a late payment fee at the rate of two percent (2.0%) of the amount due for each month or portion thereof that the amount due remains unpaid, or the maximum amount as may be permitted under applicable law, whichever is greater.  Momentum shall not be obligated to release orders unless customer has paid any amounts past due, and taken such other action as may be required hereunder.  In making payments to Momentum under these terms and conditions or any purchase order, no offsets or deductions shall be made by customer.

FREIGHT:  Unless otherwise agreed in writing, delivery shall be Ex Works (EXW) Momentum’s designated facility, as defined by INCOTERMS 2010.  Customer shall be solely responsible for all transportation and shipping costs, insurance and risk of loss.  If Momentum, at the request of customer, undertakes to send any products to their destination, risk of loss shall nonetheless pass not later than when the products are handed over to the first carrier.

MINIMUM ORDER: Unless otherwise agreed in writing by Momentum, all orders placed by customer must be for at least $1,000 worth of products (“Minimum Order”).  Momentum may refuse to ship any order that does not meet the Minimum Order or may ship the non-complying order on such other terms as Momentum and customer agree to in writing at such time.  Any shipment of an order that does not meet the Minimum Order shall be a one-time accommodation and not a modification of these terms and conditions or an ongoing waiver of any provision of these terms and conditions.

CANCELLATION.  In the event of cancellation or other withdrawal of an order for any reason, and without limiting any other remedy which Momentum may have as a result of such cancellation or other withdrawal, Momentum shall have the right to charge reasonable cancellation or restocking charges as determined by Momentum in its sole discretion.

DELIVERY.  Momentum shall use commercially reasonable efforts to deliver product in accordance with any reasonably requested delivery schedule.  Where strict compliance with such requested delivery schedule is not possible, Momentum will make delivery as soon as reasonably possible.  Momentum shall not be liable for any loss or damage resulting from any delay in delivery or for failure to give notice of any delay unless expressly agreed to in writing by Momentum.

RISK OF LOSS; EXAMINATION; RETURN OF GOODS:  Title to products and risk of loss thereof shall pass to customer upon delivery as specified herein.  Customer should examine each shipment promptly following delivery.  Defectiveness or incompleteness of the products must be communicated to Momentum in writing within 7 days after the products have been delivered.  ALL CLAIMS FOR SHORTAGES, DEFECTS OR OTHER NON-CONFORMITIES WHICH ARE NOT MADE TO MOMENTUM IN WRITING WITHIN 7 DAYS AFTER DELIVERY OF PRODUCTS ARE WAIVED.  Customer’s sole and exclusive remedy, and Momentum sole obligation, for failure to deliver conforming products shall be, at Momentum’s option, (a) the correction of the non-conforming condition or replacement of any nonconforming products, or (b) the issuance of a credit to customer in the amount of the purchase price paid and received for such products.  No product will be approved for return after one year from receipt of shipment.  All returns of Momentum product must be authorized in writing by an authorized Momentum representative.  All products returned on an unauthorized basis may be refused automatically and no responsibility will be assumed by Momentum.  Products authorized for return must be sent freight prepaid and may be subject to a restocking fee of up to 15% of the price paid for the returned products.  As a condition for refund or credit, the returned products must be in brand new, mint, blemish free condition.  All claims for losses or damages which occur in transit should be made by customer to the freight carrier and not deducted from the amounts owed to Momentum.

LIABILITY: Customer assumes all risk and liability for loss, damage, or injury to persons or property of customer or others arising out of the resale or use, either singly or in combination with other substances, or storage, transportation, or possession of any products sold hereunder.  In all events, the maximum liability of Momentum, if at all, from any cause shall be to refund if paid, or otherwise to credit to customer, the purchase price of that part of the products which are inferior in quality, defective, unshipped, or subject to such other cause as may be the basis of the claim.  Notwithstanding anything to the contrary herein, in no event shall Momentum be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, whether foreseeable or not, that are in any way related to the products or these terms and conditions, any breach hereof, loss of goodwill or profits, lost business however characterized and/or from any other cause whatsoever.  Without limiting the generality of the foregoing, the limitations on liability under this paragraph shall apply to any indemnification obligations owed by Momentum to customer at any time.

WARRANTIES:  All products sold by Momentum are sold as “novelty goods”.  Momentum makes no warranties in regard to any products sold hereunder, except that such products shall conform to Momentum’s specifications either as in effect at the time of delivery or as incorporated herein.  EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY MOMENTUM.  MOMENTUM DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.  MOMENTUM ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION.  Under no circumstances shall customer provide any person or entity any warranty regarding the products which exceeds the warranty provided by Momentum hereunder.

TAXES: In the absence of proper exemption certificates forwarded to Momentum by customer, Momentum shall collect from customer all applicable sales or use taxes or other proper taxes or governmental charges, now imposed by federal, state or local authorities upon the production, sale and/or shipment of the products sold hereunder or hereinafter becoming effective prior to delivery of such products.

FORCE MAJEURE: The consequences, direct or indirect, of labor troubles, fires, accidents, floods, war, shortage of transportation, failure, suspension or curtailment of production due to shortage of supply of raw materials, or other economic factors, government acts or requirements and any and all like or different causes beyond the control of Momentum shall excuse performance by Momentum to the extent by which performance is prevented thereby.

INTELLECTUAL PROPERTY INFRINGEMENT: Momentum reserves the right to discontinue deliveries of any material, the manufacture, sale, or use which in its opinion would involve an undue risk of a claim of infringement of the intellectual property rights of any party.

INTELLECTUAL PROPERTY: Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, trade secrets, copyrights, patents, domain names, product names, catalogs, designs, specifications, know-how, concepts, inventions or any other intellectual property rights reserved by Momentum.  Customer shall have no right to copy or use any of the intellectual property of Momentum without Momentum’s written consent.  Customer shall not remove or obscure from any products (a) any logo, label or marking on such products which may allow the products to be identified as Momentum products, or (b) any disclaimer, warranty or similar label or sticker included on the products.

CHOICE OF LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of California in all respects, without regard to its conflicts of laws principles.

ASSIGNABILITY: These terms and conditions and all contracts or orders governed by these terms and conditions shall be binding upon, and inure to the benefit of, customer and Momentum and their respective representatives, successors and assigns.  Notwithstanding the foregoing, customer shall not assign its rights and obligations under these terms and conditions, or any contract or order governed by these terms and conditions, without Momentum’s prior written consent.  No permitted assignment or transfer shall relieve customer from any of its obligations hereunder.  Any change in the beneficial ownership or voting control of customer that is in excess of fifty percent (50%) shall be deemed an assignment for purposes hereof.

INDEPENDENT CONTRACTORS: Momentum and customer are independent contractors and not principal and agent.  Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship.  Customer does not have the right to bind or otherwise obligate Momentum in any manner, nor may customer represent to anyone that it has the right to do so.

ARBITRATION:  Any dispute, claim or controversy between Momentum and customer arising out of, relating to or concerning the products, these terms and conditions or the breach thereof, including any statutory claims (including, without limitation, the arbitrability of any claim or controversy), shall be settled by final, confidential and binding arbitration conducted by the Judicial Arbitration Mediation Service (“JAMS”) before a single neutral arbitrator in Los Angeles County, California, in accordance with the JAMS expedited rules and procedures in effect at the time of such claim, which shall specifically include the right to discovery and the rules of evidence set forth in the California Evidence Code.  The arbitrator shall issue a written finding of fact and conclusions of law, which may be enforced in any court of competent jurisdiction.  The arbitrator shall have the authority to grant all monetary or equitable relief, including, without limitation, costs to the prevailing party where authorized by law.

PROVISIONAL RELIEF.  Adherence to these paragraphs regarding arbitration shall not limit the rights of the parties hereto to obtain any provisional remedy including, without limitation, injunctive or similar relief, from a court of competent jurisdiction as may be necessary to protect their respective rights and interests pending arbitration, particularly if necessary to avoid irreparable harm.  Any party also shall have the right to bring an action in a court of competent jurisdiction to compel arbitration hereunder or to otherwise enforce such arbitration provisions.

ATTORNEYS’ FEES.  Customer shall reimburse Momentum for all of its costs (including, without limitation, all of its attorneys’ fees and/or collection agency fees) incurred to collect any amounts owing by customer hereunder, regardless of whether a lawsuit is initiated.  In the event any party initiates any legal action regarding these terms and conditions, the prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs.

SEVERABILITY.  If any provision of these terms and conditions is held to be unenforceable or invalid, the remaining provisions shall remain in full force and effect.

WAIVER:  The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party.  All waivers must be in writing signed by the party giving the waiver.

Reference F004757-1

 

1.0       Shipping and Returns Policy for Dated Goods

This policy covers the criteria we will apply when shipping and the terms by which we will accept returns of dated goods that have expired.  In this policy “Dated Goods” means items that bear either an expiry or best before date.  The terms of this policy will vary our Terms and Conditions of Sale but only to the extent necessary to give its intent effect.  All other terms, particularly the obligation to examine goods for compliance, and the requirement to inform us of defects within 7 days remain unchanged.

 

1.1          Credit for Unsold Dated Goods after Expiry

We will accept the return or authorize the destruction (the choice of which to be determined at our sole discretion) of dated goods that have passed their expiration date for full credit (excluding return shipping) provided:

(a)           Your claim is made within 6 months of the expiration date; and
(b)          The goods were purchased no more than 12 months before the expiration date (ie. goods with more than 12 months validity on the expiration date are not eligible for return)

Ref: F020187 V1