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ATOMIK CLIMBING HOLDS, INC.

TERMS & CONDITIONS OF SALE

 

            All products offered by ATOMIK CLIMBING HOLDS, INC. (“Atomik” or the “Company”) are sold and provided to you subject to the following terms and conditions. The terms and conditions set forth below are fundamental elements of the basis of the agreement between Atomik and you (the “Buyer”).  Buyer understands and agrees that Atomik fills Buyer’s order(s) subject to the following terms and conditions and that Atomik would not provide any product(s) to Buyer without Buyer’s agreement to these terms.  By ordering and accepting any product(s) from Atomik (the “Products”), Buyer irrevocably acknowledges Buyer’s assent to the terms and conditions listed below.

 

WARNING! CLIMBING AND TRAINING FOR CLIMBING ARE HAZARDOUS AND DANGEROUS ACTIVITIES THAT MAY RESULT IN SERIOUS INJURY AND/OR DEATH EVEN WHEN DONE PROPERLY. USE THESE CLIMBING HOLDS AND ATOMIK PRODUCTS AT YOUR OWN RISK AND ALWAYS USE COMMON SENSE AND GOOD JUDGMENT.  ATOMIK EXPLICITLY DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY FOR ANY DEATH, INJURY, AND/OR DAMAGE TO ANY PERSON OR PROPERTY THAT MAY OCCUR, THAT ARISES OUT OF, OR IS IN ANY WAY RELATED TO THE USE OF ATOMIK PRODUCTS.  BY YOUR PURCHASE AND USE OF ATOMIK PRODUCTS, YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR SAFETY AND YOU ASSUME ALL RISKS AND ACCEPT FULL AND COMPLETE RESPONSIBILITY FOR ALL DAMAGES OF ANY KIND, INCLUDING ANY DEATH, INJURY, AND/OR DAMAGE TO ANY PERSON OR PROPERTY, THAT ARISE OUT OF, OR ARE IN ANY WAY RELATED TO YOUR USE OF ATOMIK PRODUCTS.

1. PAYMENTS & PRICING.  ALL RETAIL PAYMENTS ARE DUE UPON CONFIRMATION OF ORDER, unless otherwise agreed to by Atomik, and all initial orders must be paid in advance.  PAYMENT FOR CREDIT APPROVED WHOLESALE ACCOUNTS IS DUE IN FULL WITHIN THIRTY (30) DAYS AFTER THE ORDER SHIPS FROM ATOMIK.  All prices are subject to change without notice.  If you have been preapproved to pay by check, please make checks payable and mail to:  Atomik Climbing Holds, Inc. (order # _______),55 East 600 South, Provo, Utah 84606.

2.  CREDIT ACCOUNTS.  To apply for a new credit account:  Buyer shall complete and submit a credit application to Atomik.  Atomik shall determine, in its sole discretion, whether to grant or deny Buyer credit.  Atomik may request a valid credit card from Buyer prior to extending any credit and Buyer hereby authorizes Atomik to charge Buyer’s credit card in the event that any payment from Buyer is not paid when due.  Payment terms for orders to credit accounts approved by Atomik are NET 30 (i.e., payment of entire invoice amount is required within thirty (30) days from the date the Products are shipped).  Atomik may require personal guarantees, collateral, and/or other security as a pre-requisite to providing or continuing to provide credit.  All credit terms are subject to change without notice at Atomik’s sole discretion. 

 

3. OVER-DUE ACCOUNTS; TITLE.  A $25.00 late fee will be assessed once an account is overdue. If the account remains overdue for more than fifteen (15) days, a 2.0% finance charge will be assessed monthly on all past due accounts (24% annually). A $50.00 fee will be charged on all returned checks.  All overdue accounts shall lose any discounts if any payment is not received when due.  Atomik, at its sole discretion, may refuse to ship any Products, on any basis, to past due accounts.  Legal title to all Products sold remains with Atomik until such time as the Products are paid in full by Buyer.  Buyer agrees that Atomik retains a security interest in all Products sold on credit until such Products are paid in full. In the event any action is begun by Atomik to collect on any past due account, including but not limited to retaining an attorney, turning the account over to a collection agency, repossession, litigation, etc., Buyer shall be responsible for and shall pay Atomik all costs of collection and fees incurred by Atomik and/or its assigns, including, without limitation, all reasonable attorney fees and court costs. In the event of Buyer’s bankruptcy or similar proceedings, costs of collection shall include all costs and attorneys' fees incurred in connection with such proceedings, including the fees of Buyer’s counsel for attendance at meetings of creditors' or other committees.

4.  ORDERS; SHIPPING.  Atomik will use its best efforts to try and fill all orders, however, specific Products may become unavailable, and in such case Atomik reserves the right to fill the order with a similar Product of equal or greater valued hold.  Atomik reserves the right to cancel any order and ban any IP addresses from our system. All shipments are F.O.B. Provo, Utah, unless otherwise noted by Atomik.  Atomik will not be responsible for any Product shipping discrepancy reported more than fourteen (14) days after Buyer has received the Product(s).  The method of shipment of Atomik Products is usually decided by the Buyer at checkout.  Atomik ships through UPS, USPS, LTL, and other domestic and/or international shipping companies.  Please note that international orders (i.e., orders being shipped to an address outside of the U.S.) may incur duty, import taxes, customs charges, and/or other fees.  Atomik does not quote, nor is Atomik responsible for these fees. Any and all fees on international orders are the sole responsibility of the Buyer.  In addition, international orders that are not able to be accurately tracked are shipped at the risk of Buyer, e.g., USPS International orders. For international shipments, Atomik recommends choosing a method of shipping that provides reliable tracking.  USPS for international shipments is currently the most cost effective way to ship internationally as it includes the VAT; if an order is lost during international shipment by USPS, Buyer is responsible for the loss of the order. Tracking information for orders will be provided when available.

5.  RETURNS. In the event Buyer desires to return undamaged Products, within thirty (30) days of purchase from Atomik, Buyer shall first call Atomik at 801.404.0280, or email Atomik at kenny@atomikclimbingholds.com, and request a Return Merchandise Authorization Number (“RMA Code”).  At Atomik’s discretion and upon payment of a ten percent (10%) restocking fee, Atomik may preauthorize the return by issuing an RMA Code. After payment of the restocking fee, Atomik shall accept only returns that have been issued an RMA Code, and that are returned in salable and undamaged condition. Returns are sent at the Buyer’s expense by the following carriers: UPS, FedEx, and DHL. No returns shall be accepted without an RMA Code.  Buyer shall be credited only for Products returned in accordance with this Return Policy and that are in undamaged and resalable condition, which determination is made at Atomik’s sole discretion.   All sales are final for the following Products and these Products are not returnable or refundable:  (a) all rush orders; (b) all custom orders; (c) all climbing anchors and/or accessories; and (d) all discontinued Products.

 

6.  LIMITED WARRANTY.  Unless otherwise stated in writing, Atomik Products are covered by a limited lifetime warranty against breakage to the original Buyer. This limited warranty against breakage only covers defects in materials and workmanship in the Products.  Color fading on the Products over time is normal and is excluded from this limited warranty.  MODIFYING ANY Product AND/OR DAMAGE TO ANY Products THAT ARISES FROM OR IS RELATED TO: NORMAL USE AND WEAR, ABUSE, OR ACCIDENTS; MODIFICATION; IMPROPER PREPARATION, INSTALLATION OR USE; IMPROPER CLEANING; FAILURE TO FOLLOW ANY RELEVANT INSTRUCTIONS; AND/OR THE LIKE IS NOT COVERED BY THIS LIMITED WARRANTY AND COMPLETELY VOIDS THIS LIMITED WARRANTY.

 

Other than as described above, ATOMIK MAKES NO OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY AS TO THE DESIGN, CONDITION OR QUALITY OF MATERIALS AND/OR WORKMANSHIP OF ANY Products TO THE BUYER OR TO ANY OTHER PERSON WHATSOEVER. ATOMIK EXPRESSLY DISCLAIMS ALL RESPONSIBILITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), AND PRODUCT LIABILITY OR OTHERWISE, EVEN IF ATOMIK OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  BUYER AGREES THAT ITS FULL REMEDY AGAINST ATOMIK FOR ANY LIABILITY, CLAIMS, OR DAMAGES, SHALL BE LIMITED TO THE PURCHASE PRICE OF THE PRODUCT, AND HEREBY IRREVOCABLE WAIVES ALL CLAIMS FOR ANY OTHER DAMAGES THAT BUYER MAY HAVE.

 

7. WARRANTY CLAIMS.  In the event Buyer desires to return any Products that Buyer believes to be covered by Atomik’s limited warranty, Buyer shall text photos of the Product in question to 801.404.0280 or email the photos to kenny@atomikclimbingholds.com, with a description of the issue and how it occurred. If Atomik determines that there is a warranty issue, Atomik may either replace the Products or refund or credit the Buyer’s account at Atomik’s sole discretion. Atomik reserves the right to make all warranty determinations, which may include but are not limited to repair, replacement, refund, or credit for the Product at issue at Atomik’s sole discretion.

 

8.  BUYER REPRESENTATIONS. Buyer represents and warrants that: (a) Buyer is solely responsible for determining whether the Products are suitable for Buyer’s use and site and for the conditions onsite where the Products will be used; (b) Buyer and/or Buyer’s representatives and/or agents are solely responsible for knowing and performing the proper installation and use of the Products, and for insuring that all installation and use of the Products is performed properly and in accordance with all relevant Instructions; (c) Buyer and/or Buyer’s representatives and/or agents shall have final approval and assume all responsibility for all such installation and use. Atomik hereby explicitly disclaims all responsibility for any claims, damages, or loss related to or arising from such installation and/or use.  BUYER HEREBY RELEASES AND HOLDS ATOMIK HARMLESS FROM ANY INJURY ATOMIK SUFFERS THAT ARISES FROM OR IS RELATED TO, OR WHICH OCCURS AS A RESULT OF, BUYER’S BREACH OF THESE REPRESENTATIONS AND WARRANTIES.  BUYER HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND ATOMIK, ITS SHAREHOLDERS, MEMBERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AND AGENTS FROM AND AGAINST ALL LOSSES, LIABILITIES, DAMAGES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY FEES AND COURT COSTS, ARISING OUT OF ANY CLAIMS OR SUITS FOR DAMAGE OR INJURY TO ANY PERSON OR PROPERTY BASED IN WHOLE OR IN PART ON, ARISING OUT OF OR RELATED IN ANY WAY TO, THE BUYER’S BREACH OF THESE REPRESENTATIONS AND WARRANTIES.  

 

BUYER ACKNOWLEDGES THAT ATOMIK HAS SET ITS FEES AND SOLD ITS Products TO BUYER IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.  THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS AND CONDITIONS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

 

9.  LAW, JURISDICTION & VENUE. These Terms and Conditions of Sale shall be governed by and enforced in accordance with, the domestic laws of Utah without giving effect to any choice of law provision that would cause the application of the laws of any jurisdiction other than Utah, irrespective of the fact that any one of the parties now is or may become a resident of a different state or nation.  All disputes arising out of or in connection with the Products, if not resolved between the parties within thirty (30) days of notification of such dispute shall be mediated within ninety (90) days of either party’s notice to the other to participate in mediation before a mediator in Provo, Utah. If mediation is unsuccessful in resolving the dispute, either party may begin litigation. Each of the parties submits to the exclusive jurisdiction of any appropriate state or federal court sitting in Provo or Salt Lake City, Utah, in any action or proceeding arising out of or relating to the Products provided by Atomik and agrees that all claims in respect of the action or proceeding shall be heard and determined in any such court.  Each of the parties hereby waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other party with respect thereto. If any provision of this Agreement is held to be invalid or unenforceable under any applicable statute or rule of law, then the effected provision shall be curtailed and limited only to the minimum extent necessary to bring said provision within the legal requirements and this Agreement as so modified shall continue in full force and effect.

 

10.  MODIFICATION. Atomik reserves the right to modify, without notice, these Terms and Conditions, as well as all prices, Products.  Possession of the price list does not automatically entitle the Buyer to the Products or prices set forth therein.