INVOICE TERMS AND CONDITIONS
You, as the buyer (“You”) desire to purchase goods (“Goods”) as indicated on Your purchase order to, or an invoice from, ThinkGeek, Inc. (“ThinkGeek”). ThinkGeek agrees to sell you the Goods expressly conditioned on your acceptance of these Invoice Terms and Conditions (“Invoice Terms”). These Invoice Terms shall apply to the purchase of Goods made by You from ThinkGeek. You have read and understand these Invoice Terms and agree that Your receipt of the Goods in connection with an invoice shall constitute Your acceptance of these Invoice Terms.
- You shall pay the full amount of each purchase order for the Goods within thirty (30) days of the earlier of (i) receipt of invoice or (ii) shipping date of the Goods. All pricing and payment shall be in U.S. dollars.
- Payments received later than the due date shall accrue at the commercial Prime Rate as published in The Wall Street Journal, plus three (3) percentage points over Prime (but in no event more than the maximum amount permitted by law).
- Payments should be sent to ThinkGeek at 11216 Waples Mill Road, Suite 100, Fairfax, VA 22030. ThinkGeek’s receipt and acceptance of payments and/or accounting statements and do not preclude ThinkGeek from a subsequent challenge of the accuracy of those payments and/or accounting statements. You agree that any inconsistencies or mistakes discovered in the statements and/or payments will be promptly rectified and the appropriate payments shall be made You.
- Failure to pay in accordance herein shall be a material breach subject to, at ThinkGeek’s sole discretion, cancellation of any pending or future purchase orders of Goods, if not cured within five (5) days of written notice of such payment breach.
PROPER CONDUCT. At all times, You shall conduct business in a manner that reflects favorably on the Goods and good name, goodwill, and reputation of ThinkGeek, including, without limitation, You shall:
- Avoid deceptive, misleading, or unethical practices that are or could reasonably be considered to be detrimental to ThinkGeek or its products, including but not limited to disparagement of ThinkGeek or the Goods;
- Make no false or misleading representations with respect to the Goods;
- Not publish or use any misleading or deceptive advertising material in connection with any the Goods;
- Make no representations with respect to the Goods that are inconsistent with those made by ThinkGeek, including any warranties or disclaimers; and
- Not sell or distribute directly or indirectly the Goods outside of the specified Distribution Channel or Territory, where distribution of such Goods would be unlawful or is otherwise prohibited or restricted, including, without limitation, in a country or territory requiring a specific rating, license or approval, unless You has obtained such applicable rating, license or approval.
- PRODUCT STICKERING. Goods may have stickers specifying “Not for Sale in the United States.” In such cases, You shall not remove any such stickers/notifications on Goods, especially if being sold in the United States.
- You shall not sell or distribute the Goods outside of Your Distribution Channel or Territory. For the avoidance of doubt, unless otherwise granted permission in writing, You shall only sell the Goods to end-users/consumers and shall not sell the Goods via wholesale to any third party.
- You acknowledges and agrees that its failure to comply with the restrictions regarding the Distribution Channel and/or Territory will cause ThinkGeek to incur substantial economic damages and losses of types and in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by ThinkGeek of actual damages, and that liquidated damages represent a fair, reasonable and appropriate estimate thereof. Accordingly, in lieu of actual damages, You agree that liquidated damages may be assessed and recovered by ThinkGeek as against You and its surety, in the event of for such unauthorized resale and/or distribution and without You being required to present any evidence of the amount or character of actual damages sustained by reason thereof. Therefore, You shall be liable to ThinkGeek not only for its disgorgement of profits but for payment of liquidated damages in the amount of twice the purchase price by the purchaser for each item of Goods distributed and/or sold outside of the Distribution Channel and/or Territory. Such liquidated damages are intended to represent estimated actual damages and are not intended as a penalty, and You shall pay them to ThinkGeek within ten (10) business days of written notice from ThinkGeek, without limiting ThinkGeek's right to terminate this agreement for default as provided herein.
- NO EXCLUSIVE RIGHTS. This Agreement does not grant to You any exclusive rights with respect to any of the Goods or any rights to sell the Goods except as expressly specified in this Agreement. This Agreement shall not prevent ThinkGeek from using other resellers or distributors. All rights not granted herein are reserved to ThinkGeek.
- CUSTOMER COMPLAINTS. You shall promptly report to ThinkGeek all complaints and legal actions concerning the Goods of which it is aware or notified, and will cooperate with ThinkGeek (including its employees and attorneys) and furnish such reasonable assistance to ThinkGeek as ThinkGeek may request with respect to such complaints and actions. In addition, You will promptly report to ThinkGeek all claimed or suspected failures of any Goods to conform to applicable specifications of which it is aware or notified, or which otherwise affect the performance or merchantability of the Goods.
- REPRESENTATIONS AND WARRANTIES. Each of the parties represents and warrants that (a) it has full power, right and authority to enter into this Agreement and perform all of its obligations in accordance with the provisions hereof and in accordance with all applicable laws and governing instruments and (b) it is in full compliance, and shall comply, with all laws, rules and regulations of each country and region of the Territory.
- INDEMNITY. Each of the parties (“Indemnitor”) shall indemnify, defend and hold harmless the allegedly non-breaching party and its parent, subsidiary, associated and affiliated companies, including each of their respective officers, directors, agents and employees (the “Indemnitees”) from and against all third party damages, costs, including reasonable attorney’s fees and expenses, based upon, arising out of or in connection with any breach or alleged breach by the Indemnitor of any of its representations, warranties, covenants or obligations hereunder.
- TERMINATION. You acknowledge and agree that failure to comply with this Agreement is a material violation thereof and at the sole discretion of ThinkGeek, may result in cancellation of You’s order(s) by ThinkGeek as well as appropriate legal action, including, but not limited to, seeking judicial intervention of the courts. In the event of an uncured breach, ThinkGeek shall be entitled to seek all available remedies, including, but not limited to, the right to seek injunctive relief, monetary damages, attorney’s costs and fees, and special or punitive damages. Rights and remedies granted hereunder are cumulative. The exercise of one shall not diminish or affect any other rights or remedies at law or in equity.
- GOVERNING LAW; VENUE. This Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to its conflicts of laws provisions. Any legal action arising out of this Agreement shall be brought in a court of competent jurisdiction in the United States District Court for the Eastern District of Virginia, Alexandria Division and each party hereby consents to the sole and exclusive jurisdiction and venue of such court.
- INVOICE TERM MODIFICATIONS. ThinkGeek reserves the right at any time to modify, in whole or in part, the Invoice Terms. Such modifications to the Invoice Terms shall be made available on the ThinkGeek.com website and shall be enforceable 90 days after posting.
- LEGAL NOTICES. Should you have any questions about the Invoice Terms, please do not hesitate to contact us at ThinkGeek, Inc., 11216 Waples Mill Road, Suite 100, Fairfax, VA 22030, Attention: General Counsel.