Terms of Sale
These Terms of Sale (these "Terms") govern all purchases of goods or services through this website (this "Website") from Beyond Infinity Corporation, dba ZMARK On Target Promotions. (the "Seller"). Anyone purchasing goods or services through this Website (each, a "Buyer") agrees to be bound by these Terms.
1. All sales of the goods covered hereunder (the "Goods") are F.O.B. Seller's shipping point, regardless of the means of delivery to Buyer, with title and risk of loss passing to Buyer at such time. 2. Except as expressly warranted by Seller in its written warranty applicable to the Goods, Seller makes NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Buyer agrees to assume all risks and liability for the Goods, whether used individually or in combination with other goods. 3. Buyer shall inspect the Goods immediately upon arrival and shall within five (5) business days after arrival give written notice to Seller of any claim that (1) the Goods do not conform with the terms of the Buyer's purchase order (the "Order") or (2) that the Goods are defective, provided that a visual inspection should have revealed such defect. If Buyer shall fail to give such notice, the Goods shall be deemed to conform to the terms of the Order, and Buyer shall be deemed to have accepted and shall pay for the Goods in accordance with the terms of the Order and these Terms (together, the "Agreement"). 4. Buyer agrees to indemnify and hold Seller harmless from any and all claims, actions, liability, loss, damage or expense (including, without limitation, reasonable attorneys' fees) with respect to any suit, claim, demand or other proceeding arising out of or relating to the Goods, except to the extent relating to a breach of Seller's express written warranty made herein. 5. Seller's liability to Buyer, or person or entity purchasing from Buyer, shall be limited to the extent permitted by law, to the express warranties set forth in Seller's written warranty applicable to the Goods. Seller shall not be bound by any claim adjustment made by Buyer without prior written authorization by Seller's representative. Return of Goods will not be accepted unless a written authorization for return has been given by Seller. Any unauthorized returns are subject to refusal by Seller and may be returned to Buyer on a freight collect basis. SELLER SHALL HAVE NO LIABILITY TO BUYER (OR ANY PERSON OR ENTITY CLAIMING THROUGH BUYER) FOR LOST PROFITS, LOSS OF REVENUE, OR FOR INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES AND THESE ARE HEREBY WAIVED BY BUYER.
6. The terms of payment for the Goods shall be as stated on each invoice or, if the Order is placed through the Website, on the final confirmation page before the Order is submitted. A thirty five ($35.00) dollar fee will be charged on each check returned due to insufficient funds. Checks will not be re-deposited. In the event a legal action is commenced by Seller to enforce any of the terms of this Agreement, Seller shall be entitled to recover its collection costs and reasonable attorney's fees incurred in connection with such legal action. 7. Credit arrangements are subject to written approval of Seller and are subject to change without notice. In the event Buyer fails to fulfill the terms of payment or in the event Seller shall have any doubt at any time as to Buyer's financial responsibility, Seller may decline to make further deliveries except upon receipt of cash or satisfactory security. 8. Buyer shall reimburse Seller for all taxes, excises, or other charges that Seller may be required to collect for and/or pay to the government upon the sale or transportation of the Goods. 9. No liability shall result from delay in performance or nonperformance of this Agreement directly or indirectly caused by fire, explosion, accidents, flood, or other act of God, labor trouble or shortage, act of or authorized by any government, inability to obtain suitable material, equipment, fuel, power or transportation, or arising from contingencies, happenings or causes beyond the control of the party affected. Seller shall not be required to provide quantities of Goods so affected by any such circumstances, but this Agreement shall otherwise remain unaffected. 10. Orders are not assignable or transferable by Buyer in whole or in part, except with the prior written consent of Seller. 11. In the event of inability for any reason to supply the total demands for the Goods specified, Seller may allocate its available supply among any or all of customers on such basis as it may deem fair and practical, without liability for any failure of performance which may result there from. 12. Seller's Website may contain functions that allow the Buyer to purchase Goods (as applicable, "Customized Goods") that have been customized by the addition of trademarks, logos, copywritten material or other marks that are provided by, or specified by, the Buyer (as applicable, "Buyer Marks"). Buyer represents and warrants that, with respect to any Customized Goods ordered by Buyer, Buyer will have absolute ownership or an appropriate license to use, display and create derivative works from, all Buyer Marks that Buyer may provide or specify. In addition to any other remedies Seller may have at law or in equity, Buyer agrees to indemnify, defend and hold harmless Seller and its subcontractors, agents, partners, principals, members, officers and employees (an "Indemnified Party") from and against any and all liability, expenses, including reasonable legal fees, and claims for damages to the extent resulting
from any Buyer Marks or any breach by Buyer of the foregoing representation and warranty that results in a third party claim against the Indemnified Party alleging that such Indemnified Party has infringed the intellectual property rights of such third party. 13. This Agreement shall be construed and enforced in accordance with the laws of the state of Georgia. Buyer agrees to (i) irrevocably and unconditionally submit to the exclusive jurisdiction of the state and federal courts located in Atlanta, Fulton County, Georgia to resolve any disputes relating to this Agreement and (ii) waive any right to move or dismiss or transfer any such action brought in such court on the basis of any objection to personal jurisdiction or venue. Any controversy or claim arising out of or relating to this Agreement shall, at the election of Seller, be settled by arbitration conducted in Atlanta, Georgia in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. 14. Buyer agrees that Seller may use Buyer's name and logo on Seller's website and in other marketing materials to identify Buyer as a customer of Seller. 15. No terms or conditions other than those stated in this Agreement shall be binding on Seller unless such modifications or additional terms are made in writing and executed by an officer of Seller. No terms or conditions contained herein shall be deemed affected by Buyer's documents containing other or different terms and conditions. The terms and conditions of this Agreement shall take precedence over any different or conflicting terms in Buyer's Order or other Buyer documents. Acceptance by Seller of the Order is expressly limited to the terms and conditions contained in this Agreement. In the event an Order shall be deemed an acceptance of Buyer's offer, the Order is expressly conditioned upon Buyer's assent of the terms and conditions contained in this Agreement. A written contract between Buyer and Seller that expressly references this Agreement may supersede this Agreement to the extent, and in the manner, provided therein. 16. In the event an order is confirmed as approved and such order is subsequently canceled, regardless of the timeframe after approval, Buyer may be subject to an Order Termination Fee of 15% of the order Total or $50.00, whichever is greater. If applied, this fee shall be subtracted from any refund for such canceled order regardless of the payment method or the reason for such cancellation. 17. Products featured and/or sold on our site are sold for use in a business context and are not suitable for use by children or meant to be used as children's toys. Products are not labeled, packaged, or tested as such and ZMARK cannot be held liable for any use by children regardless of their intended purpose when purchased