Effective: November 30, 2010, until further notice
- This End-User Terms and Conditions of Sale Agreement (this “Agreement”) applies to all sales of the Products (as defined herein) to you by Ellison Educational Equipment, a California corporation located at 25862 Commercentre Drive, Lake Forest, California 92630 (referred to herein as “Ellison,” “Company,” “we,” “us” or “our”).
- An Officer of Ellison must confirm any variations to this Agreement in writing. By placing your Order (as defined herein), which is accepted by Ellison, you hereby signify your assent to and acceptance of the terms and conditions in this Agreement. If you do not agree to the terms and conditions in this Agreement, return the products that are the subject of the invoice to which this Agreement is incorporated and do not place any further orders to or make purchases of the Products from us.
- This Agreement supersedes any other Agreements between you and Ellison whether written or verbal, including but not limited to any terms and conditions you proffered or may proffer in connection with your Order except that this Agreement does not supersede any Ellison agreement and/or policies we incorporate herein by reference that you may have entered into with us.
- “Order” – an order from the End-User for the Products which Ellison may, in its sole discretion, accept.
- “End-User (“Buyer,” “you,” “your,” “End-User,” “Consumer,” or “Customer”)” – the entity, business and/or individual, as identified on the Order, which intends to use Ellison Products for its own use.
- “Ellison (“us,” “our,” “we” or the “Company”)” – the Product vendor, which may be identified on your invoice as any of Ellison Educational Equipment, Ellison, Sizzix, ellisoneducation.com, ellison.com, and sizzix.com.
- “Ellison Products” – products that are marked with the “Ellison” or “Sizzix” brands. “Third Party Products” – all goods that are not Ellison Products but are sold by us.
- “Accepted Order” – tacit acknowledgement of Products ordered by you and issued in accordance with Section 2 by beginning the order fulfillment process.
- “Parties” – Ellison and the End-User and “Party” shall be construed accordingly. “Price” – those prices stated in the Order after the Order becomes an Accepted Order in accordance with Section 2. “Products” – Ellison Products and Third Party Products
- Subject to the further terms and conditions you may have entered into with us, we will sell to you and you will purchase from us Products, subject to our approval and this Agreement. From time to time, we may provide you a quotation in advance of your placing an Order. Quotations are only valid in writing and during the period so stated. If unstated, the period is five (5) working days. Orders may be received by writing, Internet, telephone or fax. Receipt of your Order does not constitute acceptance of your Order. That acceptance will be deemed complete if you have not received, within two business days of placing your Order, any written communication from us stating that we will not accept your Order. (“Accepted Order”). Each Accepted Order shall be binding on both Parties. First-time order and re-order minimums (“Minimums”) may apply. For Internet Orders, if there are any Minimums, they will be displayed during the order process but before you submit your Order. For all other Orders, please contact us at 877-355-4766 or through Contact Us. We may change Minimums at any time, without notice. You agree that we may cancel items from your Order that are not in stock. All Products are subject to availability.
- In the event of an obvious incorrect price (in relation to the general market price for the same or similar products) appears on our website (a price that is clearly too low or too expensive), for whatever reason, e.g., information technology bug, human error, technical error, set up error, we will cancel your Order, even if you have received confirmation that we received your Order.
- Prices, Taxes and Discounts
- Prices. All unit prices are quoted and/or invoiced in U.S. Dollars and will be: a) those prices effective at the date of dispatch; b) exclusive of any applicable tax, duty, import fees; c) exclusive of warehouse for export; d) inclusive of applicable discount; and e) subject to applicable shipping and handling charges as provided on a per-Order basis. We reserve the right to alter prices at any time prior to your Accepted Order.
- Taxes. Any applicable sales tax will be invoiced as a separate line item for Orders in the United States of California, Indiana, Utah and Washington unless we receive your proper tax-exempt documentation.
- Discounts. All applicable discounts are a) based upon our then-current applicable End-User pricing for your account; b) applied on a per-Order basis; c) applied on the net value per each Order; and d) applied only to shipments and/or dispatches to the USA and non-European countries.
- Payment must be made before your order is dispatched or, if agreed in advance in writing between Ellison and the End-User, strictly within 30 days of the invoice date. If payment is not made in full by the due date on the invoice, we reserve the right to charge interest on all overdue payment amounts at the maximum statutory rate on the late amount (such interest to accrue on a day-to-day basis from the due date for payment until receipt by us of the full amount whether before or after any Judgment) and to suspend further dispatches of the Products. If due to default in payment we incur additional costs in collecting the debt, such as legal or debt collection fees, then you are liable to pay for any cost of recovery. Time for payment shall be of the essence. Checks may only be accepted conditionally until cleared funds have been received in respect of such checks by Ellison.
- You shall indemnify the Company against all costs and expenses (including any legal costs and expenses on a full indemnity basis) incurred or sustained by the Company in recovering sums due in each case without prejudice to any other rights or remedies available to the Company.
- Delivery, Title and Risk
- Delivery. Any delivery period, if stated, is approximate, and time of delivery shall not be of the essence. Ellison shall make reasonable efforts to fulfill promises of dispatch and deliver to the address shown on the Order, but no liability for failure to do so can be accepted by Ellison. Dispatch will only be effected by your ship-to delivery address unless the Company has specifically agreed to the contrary. The Company reserves the right to dispatch Products in installments and, in this case, to tender a separate invoice in respect of each installment. Each separate installment shall be invoiced and paid for in accordance with the terms of this Agreement.
- Title. We will retain ownership of the Products until full payment has been made by you and has been received by us. Until then, you must:
- insure the Products on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company;
- hold the Products on a fiduciary basis as the Company’s bailee;
- store those Products separately from all other Products and goods of any third party; and
- not modify, pledge or sell the Products. We may enter your storage premises to repossess the Products. Should you sell or dispose of them to another person before title passes, such part of the proceeds of such sale or disposal as is attributable to the price due by the End-User to the Company in respect of such Products, shall be held by the End-User on trust for the Company as property of the Company and held separately from your general funds. We may sue for the price of the Products before title passes. If you refuse delivery without our agreement, you must pay our expenses or loss resulting from that refusal, including storage costs, until you accept delivery.
- Risk. All items purchased from us and delivered by a third party carrier are made pursuant to a shipment contract. This means that all risk of loss passes to you upon our delivery to the third party carrier or, if collected by your agent, all risk of loss passes upon our delivery to your agent.
- Your Acceptance of Products and Returns
- Acceptance. You will inspect the Products within a reasonable time after their receipt and you will be deemed to have accepted them unless within three (3) days after their receipt you notify us that the Products are rejected. If no such action is taken, we will consider the items as being accepted.
- Returns. If we agree to the return of the Product at our choosing, it must be within 30 days of receipt of Products; in its original condition with packaging, a return note and proof of purchase; must have been authorized by us prior to the return and include a return authorization number clearly visible on the outside of the return shipping carton or Ellison will refuse the return; the return costs may also be payable by you. You are liable for any loss resulting from your failure to comply with our carrier’s requirements with respect to notification of damage, shortage and non-dispatch of Products. The carrier’s non-dispatch of products must be advised in writing to the carrier and us within 10 days from the date of the invoice. You must retain damaged Products for inspection by us at our discretion. Returned Products must be sent carriage paid. Restocking fee may apply.
- Ellison Products. Ellison Products come with various limited end-user warranties, with which you are agree to become familiar. The eclips products are subject to an End-User License Agreement. You will find Ellison Product warranties at located at www.sizzix.com/warranties and www.ellisoneducation.com/warranties. And, you will find the eclips End-User License Agreement at www.sizzix.com/warranties in the eclips product category.
- Third Party Products. Third Party Products are sold “as is.” Please consult the manufacturer for its express warranty provisions.
- Limitation of Liability
WE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH ANY ORDER PLACED WHETHER OR NOT ACCEPTED BY US, INCLUDING BUT NOT LIMITED TO 1) LOSS OF BUSINESS PROFITS, SALARY, REVENUE, SAVINGS, 2) DAMAGE REMEDIED BY ELLISON WITHIN A REASONABLE TIME, 3) LOSS AVOIDABLE BY YOU THROUGH REASONABLE CONDUCT, 4) SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR RELIANCE DAMAGES, OR 5) ALL ITEMS EXCLUDED FROM THE WARRANTY OR BY FORCE MAJEURE, ARISING OUT OF OR IN CONNECTION WITH THE ELLISON PRODUCTS OR THIS AGREEMENT, UNDER ANY LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. WE DO NOT EXCLUDE OR LIMIT OUR LIABILITY OR THE LIABILITY OF ANY OTHER PERSON FOR DEATH OR PERSONAL INJURY RESULTING FROM OUR OR THEIR NEGLIGENCE OR FOR FRAUDULENT MISREPRESENTATION. EXCEPT AS SET OUT ABOVE AND IN RELATION TO OUR CONTRACTUAL OBLIGATIONS TO SUPPLY PRODUCTS FOLLOWING ACCEPTANCE OF ORDERS PLACED, NEITHER WE NOR ANY OF OUR AGENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES WILL BE LIABLE IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE FOR ANY LOSS OR DAMAGE WHATSOEVER IN ANY WAY CONNECTED WITH YOUR ORDER OR THIS AGREEMENT.
You agree to indemnify us and our agents and officers, directors and employees, immediately on demand, against all claims, liability, damages, costs, expenses, including legal fees, arising out of any breach of this Agreement by you.
- Proprietary Property
We own various proprietary and intellectual property rights in connection with the Products, including but not limited to patents, copyrights, domain names and trademarks (“Content”). No Content owned or licensed by us may be copied, reproduced, republished, uploaded, downloaded, posted, transmitted, distributed, resold, modified or registered without prior, written permission from us. In the circumstance that you buy die Products from us and you would like to use certain die design images in your own hand-made craftwork that you produce to sell, such usage will be subject to the terms and conditions set forth in the Angel Policy, corresponding to the brand of die Product you purchase from us. The Angel Policy is incorporated herein by reference.
- Force Majeure
Ellison is not liable for delays in performance (including delivery and dispatch) caused by circumstances beyond its reasonable control and will be entitled to a time extension for performance; examples include strikes, terrorist acts, war, supplier, transport, production problems, exchange fluctuation, governmental or regulatory action and natural disasters. If this lasts more than two (2) months, this Agreement may be terminated by either Party without compensation.
Ellison may terminate this Agreement with immediate written notice if you:
- fail to pay sums due under the Agreement in accordance with the terms of the Agreement;
- do not meet the Minimums, as determined in our sole discretion; or
- violate any provision of this Agreement.
Either Party may terminate this Agreement if the other: 1) commits a material or persistent breach of this Agreement and fails to remedy this within ten (10) days written notice from the other; or 2) becomes insolvent or is unable to pay debts as they fall due.
Each party to this Agreement must treat all information received from the other marked “confidential” or reasonably obvious to be confidential as it would treat its own confidential information.
- If any part of this Agreement is found to be invalid or unenforceable by a court, the rest of the provisions of the Agreement shall be unaffected. Ellison may subcontract, assign or transfer its obligations or rights to a competent third party whether in whole or in part. You may not assign or transfer any of your obligations.
- All notices must be in writing (by hand, email, fax or mail [deemed delivered 48 hours after posting]) and sent to the Company Secretary of either Party or such person as the Parties confirm to each other shall be the relevant person to whom the notices should be sent.
- This Agreement supersedes all prior agreements, arrangements and understandings, transactions or statements between the Parties and constitutes the entire agreement between the Parties relating to the subject matter hereof, except that this Agreement does not supersede any agreement and/or policies expressly incorporated herein by reference that you may have entered into with us. If there is any inconsistency between this Agreement and the Online Program, the terms of this Agreement shall prevail. Neither Party is entering into this Agreement or any of the arrangements contemplated by this Agreement in reliance upon any representation or warranty not expressly set out in this Agreement.
- Independent Contractors. Each party hereby acknowledges that the parties shall be independent contractors and that the relationship between the parties shall not constitute a partnership, franchisee, joint venture or agency. Neither party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other party, without the prior consent of the other party to do so.
- The English language version of this Agreement shall govern and control any translations of this Agreement into any other language.
- Dispute Resolution
- Arbitration. Any dispute, controversy or claim initiated by either party arising out of or relating to this Agreement, its negotiations, execution or interpretation; or the performance by either party of its obligations under this Agreement (other than bona fide third party actions or proceedings filed or instituted in an action or proceeding by a third party against a party to this Agreement), whether before or after termination of this Agreement, shall be formally resolved by binding arbitration. Whenever a party shall decide to institute arbitration proceedings, it shall give prompt written notice to that effect to the other party. Any such arbitration shall be conducted in the English language under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by (1) arbitrator appointed in accordance with such rules. Any such arbitration shall be held in Orange County, California. The method and manner of discovery in any such arbitration proceedings shall be governed by California Code of Civil Procedures § 1282 et seq. (including without limitation California Code of Civil Procedure §1283.05). The arbitrators shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including attorneys’ fees and expenses of the parties) in such equitable manner as they determine. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based upon such claim, dispute or other matter in question would be barred by the applicable statute of limitations.
- Equitable Relief. You acknowledge that any breach of its obligations under this Agreement with respect to the proprietary rights or confidential information of Ellison will cause Ellison irreparable injury for which there are inadequate remedies at law, and therefore, notwithstanding the provisions of Section 15(1), Ellison will be entitled to seek equitable relief in addition to all other remedies provided by this Agreement or available at law.
- Applicable Law, Venue
This Agreement shall be construed and enforced in accordance with the laws of the State of California, without regard to the conflicts of law principles thereof, and shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby submit to the non-exclusive jurisdiction of, and venue in, the state and federal courts located in Orange County, California, for the purposes of enforcing arbitration awards issued under Section 15(1) or for purposes of obtaining equitable relief under Section 15(2).