TERMS AND CONDITIONS
GENERAL. These Terms and Conditions (“Terms”)
for Barnes 4wd L.L.C. (“Company”) and Barnes4wd.com (“Site”)
include, by specific reference hereto, the terms included herein and the
Privacy Policy (“Policy”). By using this Site, purchasing any item
through the Site (“Purchase”), registration for potential purchases
through the Site, registration for inclusion on the Company’s mailing list
and/or to receive an electronic newsletter, the individual conduction such use
of the Site (“User” or “You”) consent to be bound by the Terms
and shall form a contract under the laws of the State of North Carolina.
PRODUCTS. The term “Products” shall include items,
material, chattels, equipment, machinery, manufactured articles, merchandise,
fixtures, products, software, appliances, plant and any other items to be
supplied by Company to the User according to a Purchase.
PURCHASE. Your receipt of an electronic or other form
of order confirmation does not signify Company’s acceptance of your order, nor
does it constitute confirmation of Company’s offer to sell. Company reserves
the right at any time after receipt of your order to accept or decline your
order for any reason or to supply less than the quantity you ordered of any
item. The Products shall be delivered to the User to the place and by the
methods specified in the Purchase. User shall pre-pay for all Products at the
time of Purchase. Company reserves the right to pursue all available remedies
should User’s payment have insufficient funds or otherwise be rejected.
TYPOGRAPHICAL AND OTHER
ERRORS. In the event a Product is
listed at an incorrect price due to typographical error or error in pricing
information received from our suppliers, Company shall have the right to refuse
or cancel any orders placed for Product listed at the incorrect price. Company
shall have the right to refuse or cancel any such orders whether or not the
order has been confirmed and your credit card charged. If your credit card has
already been charged for the Purchase and your order is canceled, Company shall
immediately issue a credit to your credit card account in the amount of the
incorrect price.
WARRANTIES. Company warrants to User that all Products
covered by these Terms conform to the samples, drawings, specifications, plans,
or other descriptions provided on the Site (collectively, “Specifications”).
Company shall not substitute Products. EXCEPT AS
EXPRESSLY SET FORTH IN THESE TERMS, COMPANY DOES NOT MAKE ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT TO THE PRODUCTS,
INCLUDING WITHOUT LIMITATION WITH RESPECT TO MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE, VALUE, VALIDITY, OR ENFORCEABILITY, AND ANY AND ALL SUCH
OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. Company
does not warranty any Products for use non-confirming with the intended or
apparent use, and for the improper installation or manipulation of the Products.
To the extent that any warranty exists, such warranty is wholly waived if User
changes, alters, manipulates, or damages the Products in any way. Company
agrees to repair or replace free of charge any whole or partial Products which
prove defective or which operate unsatisfactorily prior to installation of the Products
by User. This warranty does not apply to normal effects of corrosion or wear
and tear.
REMEDIES. Notwithstanding anything to the contrary
contained in these Terms, Company reserves the right to pursue lost profits or
consequential damages in connection with any violation by User of these Terms.
INDEMNIFICATION. To the fullest extent permitted by law, User
shall indemnify and hold harmless Company and any Company representative and
all of their respective trustees, directors, officers, employees and agents
(collectively, "Products Indemnities") from and against all
claims, liabilities, damages, losses, costs (including, without limitation,
reasonable legal fees) and expenses (collectively, "Claims"),
arising from or relating to the undertaking of Company hereunder or any
defect(s) in the Products supplied, provided such Claims are caused in whole or
in part by any negligent act, omission, recklessness or willful misconduct of User
or anyone for whose acts User may be liable, or provided User may be held
responsible for same under other applicable legal or equitable principles.
REGULATORY COMPLIANCE
AND NONDISCRIMINATION. The Company is
in compliance with all applicable laws, ordinances, rules, regulations and
orders of any public authority having jurisdiction (“Laws”) including,
without limitation, the applicable provisions of applicable Laws dealing with
labor and wages, workmen’s compensation, employer liability, unemployment
compensation, old age benefits, safety, antitrust and anti-collusion, fair
trade, the environment, equal employment opportunity and discrimination on the
basis of race, color, religion, gender, national origin, veteran’s status or
disability.
WAIVER OF LIENS. Company agrees that no mechanics or
materialmans lien or other claim shall be filed or maintained by Company or by
any other person for or on account of any work done on Products furnished in a
Purchase. Each Purchase shall be an independent contract.
CONFIDENTIALITY. User hereby acknowledges that, through a
Purchase or by other contact with the Company, User may gain access to or receive
certain information of or about the Company that Company designates as
confidential or that, under the circumstances surrounding disclosure, ought to
be treated as confidential by User (“Confidential Information”).
Confidential Information includes information relating to the Company or its
current or proposed business, financial statements, budgets and projections,
customer identifying information, potential and intended customers, employers,
products, computer programs, specifications, manuals, software, analyses,
strategies, marketing plans, business plans, designs, trademarks, developed
products, products-in-development, and other confidential information, provided
orally, in writing, by drawings, or by any other media. User agrees to treat
the Confidential Information as strictly confidential and to not disclose it to
any third-party or use it for any purpose but to fulfill his/her obligations in
the Purchase. In addition, User shall use due care and diligence to prevent the
unauthorized use or disclosure of Confidential Information.
COPYRIGHTS AND
TRADEMARKS. Unless otherwise
specified, all materials appearing on this Site, including the text, site
design, logos, graphics, icons, and images, as well as the selection, assembly
and arrangement thereof, are the sole property of the Company, Copyright ©
2006, ALL RIGHTS RESERVED. You may use
the content of this site only for the purpose of making a Purchase and for no
other purpose. No materials from this site may be copied, reproduced, modified,
republished, uploaded, posted, transmitted, or distributed in any form or by
any means without our prior written permission of the Company. All rights not
expressly granted herein are reserved. Any unauthorized use of the materials
appearing on this site may violate copyright, trademark and other applicable
laws and could result in criminal or civil penalties.
MISCELLANEOUS. No agreement or other understanding in any
way modifying the Terms shall be binding upon Company unless made or accepted
by Company in writing. These Terms shall be subject to modification, amendment
and/or cancellation by Company. Any provision in these Terms that is held to be
inoperative, unenforceable, voidable or invalid in any jurisdiction shall as to
that jurisdiction, be ineffective, unenforceable, void or invalid without
affecting the remaining provisions, or the enforce ability of all provisions in
any other jurisdiction and to this end, the provisions hereof are declared to
be severable. The contract resulting from the acceptance of these Terms is to
be governed by and construed in accordance with the laws of the State of North
Carolina without regard to the choice of laws provisions thereof. The Parties
agree to bring any federal or state legal proceeding arising under these Terms
in a court of competent jurisdiction within Henderson County, North Carolina,
or the Western District of North Carolina. This section shall not be construed
to limit any rights a party may have to intervene in any action, wherever
pending, in which one of the others is a party.