TERMS OF PURCHASE FOR
DICK’S SPORTING GOODS AUCTIONS
These
DMSC Terms of Purchase (“Agreement”) govern the sale of certain
products (“Products”) by DICK’S Merchandising & Supply Chain,
Inc. (“DMSC”) and purchase of Products by a buyer (“Buyer”
or “you” or “your”) by or through the online, or
other form of marketplace (“Marketplace”) located at https://www.liquidation.com (the “Site”),
hosted, configured and managed solely by Liquidity Services Operations LLC (“LSI”). For purposes of this Agreement, the Site
shall be considered part of the Marketplace.
Buyer and DMSC are collectively referred to herein as the “Parties” and
individually as a “Party.”
Now,
therefore, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound, Buyer and DMSC
agree as follows:
1.
Scope of Agreement. This
Agreement governs Buyer’s purchase of Products from the Marketplace. By checking “I agree to the Terms of
Purchase” each time you log into the Site, and each time you place a bid on
and/or purchase Products from the Marketplace, you accept and agree to be bound
by this Agreement. If you do not agree
with this Agreement, you should not use and should not bid on or purchase
Products from the Marketplace. You may
preserve this Agreement in written form by printing it for your records, and
you waive any other requirements that this Agreement be evidenced by a written
document. DMSC reserves the right, from
time to time, with or without notice to Buyer, to change the terms of this
Agreement. The most current version of
the Agreement will supersede all previous versions and can be reviewed by
clicking on “Terms of Purchase” located on the Marketplace. Buyer’s use of the Site or Marketplace or
continued purchases after changes are made mean that Buyer agrees to be bound
by such changes. If Buyer is entering
into this Agreement on behalf of a company or other legal entity, Buyer
represents that it has the authority to bind such entity to this
Agreement. Buyer may not use the
Marketplace if it does not have such authority.
When Buyer registers on and subsequently uses the Marketplace, LSI is
collecting the information provided by Buyer and will protect it and use it in
accordance with its privacy policy.
2.
DMSC Representations and Warranties. DMSC represents and warrants that:
a. DMSC has title or
otherwise sufficient right to pass title for the Products to Buyer upon
transfer.
b. Upon transfer of the
Products to Buyer, the title for such Products shall transfer to buyer free and
clear of any encumbrance.
c. No Warranties for
Products. ALL SALES OF THE PRODUCTS ARE
FINAL. EXCEPT AS EXPLICITLY AUTHORIZED
UNDER THIS AGREEMENT, NO RETURNS OR REFUNDS WILL BE PERMITTED. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT
THE PRODUCTS ARE PURCHASED AS-IS, WHERE IS, WITH ALL FAULTS AND WITHOUT ANY
WARRANTY, GUARANTEE OR ASSURANCE OF ANY NATURE OR TYPE WHATSOEVER, EXCEPT FOR
WARRANTY OF TITLE AS PER THE TERMS OF THIS AGREEMENT. PRODUCTS DO NOT INCLUDE ANY EXPRESS OR
IMPLIED WARRANTIES OR BRAND OR MANUFACTURER WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHETHER FROM DMSC OR DMSC
GROUP (AS DEFINED BELOW) OR FROM THE ORIGINAL MANUFACTURER OF THE PRODUCTS,
WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE,
OR OTHERWISE, AND SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. DMSC GROUP DISCLAIMS ANY LIABILITY FOR
DAMAGES OF ANY KIND AS A RESULT OF THE TRANSPORTATION, USE, SALE OR PURCHASE OF
ANY PRODUCTS.
3.
Buyer Representations and Warranties. Buyer represents and warrants that:
a. Buyer will comply with
all applicable laws in performance of its obligations under this
Agreement. Without limiting the
generality of the foregoing, Buyer shall at all times, at its own expense,
obtain, and maintain all certifications, credentials, authorizations, licenses,
and permits necessary to conduct its business relating to the exercise of its
rights and the performance of its obligations under this Agreement.
b. Buyer shall not sell or
advertise the Products as “new”.
c. Buyer shall notify any
purchaser of the Products that they are without any brand or manufacturer or
any other warranty pursuant to Section 2(c) above.
d. Buyer has the authority
to enter into and fulfill all of its obligations under this Agreement.
e. Buyer may and shall
perform its obligations under this Agreement without breaching or interfering
with any other agreement, contract, obligation or understanding.
f. All of Buyer’s
obligations under this Agreement shall be performed by Buyer through its
employees and not by subcontractors or consultants to Buyer, unless otherwise
permitted under this Agreement or by mutual agreement by the Parties.
g. Buyer’s performance
under this Agreement shall be performed: (i) in a
professional, workmanlike manner, and (ii) using reasonable care consistent
with not less than the highest industry standards, (iii) by personnel of Buyer
having a skill in the area commensurate with the requirements of this
Agreement.
4.
Auction Process.
Products will be sold pursuant to the auction process set forth on the
Marketplace. All sales are final and no return or refunds will be accepted except as
otherwise explicitly set forth in this Agreement. Products are described in the listing on the
Marketplace to the best of DMSC’s ability; however, DMSC does not warrant that
listings or any descriptions therein are complete, accurate, reliable, current,
or error-free. The Products are provided
“as is” for purchase on the Marketplace.
Products sold are subject to up to a 5% quantity variance per
order. Buyer must notify LSI in writing
of any Products that are delivered with a shortfall in quantity variance over
5% in accordance with Section 9 below.
DMSC shall have no liability if a Product quantity shortfall is equal to
or less than 5% of the quantity listed on the Marketplace.
5.
Payment Terms. If
Buyer is determined to be the winning bidder at the end of an auction on the
Marketplace, DMSC and/or LSI will provide the Buyer with details of payment
requirements. Full payment of winning
bid purchase price (“Purchase Price”) is required within two (2)
business days of the awarded sale.
Products will not be released to Buyer until payment has been received
by LSI. In the event Buyer fails to pay the
Purchase Price pursuant to the terms of this Agreement after the conclusion of
the applicable auction, the winning bid may be forfeited and a cancellation fee
will be applied equal to 15% of the Purchase Price or $200, whichever is
greater. In addition, at the option of
LSI, the Buyer’s account may be suspended.
Any forfeited or cancelled auction may be either relisted or sold to
another bidder, at the sole discretion of DMSC.
6.
Shipment and Acceptance of Products. Following payment, Buyer agrees to
immediately arrange for shipment of the Products. Buyer will be contacted within twenty-four
(24) hours after payment of the Purchase Price to arrange for the
transportation and pick-up of the Product at a time agreeable by both Parties
for transport pursuant to the following requirements:
a. If applicable, Buyer
will provide DMSC trailer numbers and SCAC Codes before Buyer picks up Product.
b. Buyer shall ensure
trailers are picked up within twelve (12) hours of DMSC request.
c. Buyer shall remove the
Products using reasonable care and in compliance with all applicable laws.
d. Buyer shall be
reasonable for all damages to property and improvements and/or for injury to
property or persons caused by Buyer’s removal of Products.
e. Freight terms are EXW
Incoterms 2020 DMSC warehouse dock, freight collect.
f. Buyer shall be
responsible for all freight charges and any additional costs associated with
the pick-up and delivery of the Products.
7.
Storage Fees. If
Buyer fails to pick-up or otherwise arrange for the delivery of the Products
within five (5) days of payment of the Purchase Price, DMSC may assess a $10.00
per pallet storage fee per day (“Storage Fees”). After 5 days, DMSC may, in its sole
discretion, choose to: (a) keep such Products, list them for auction on the
Marketplace and sell them to another bidder, and refund to Buyer the Purchase
Price paid to DMSC less (i) Storage Fees, and (ii) a
restocking fee of up to 20% of the Purchase Price (“Restocking Fee”)
and in which case Buyer shall not have any right, title or interest in or to
the Products; or (b) complete the sale with Buyer equal to the original Purchase
Price plus Storage Fees and any applicable Restocking Fee.
8.
Title, Risk of Loss. Title
to the Products shall remain with DMSC until the Buyer, or its Representatives
(as defined below) takes possession of the Products. Buyer acknowledges that all risk of loss and
liability for the Products shall pass to Buyer upon its or its Representatives
receipt of the Products, and after such time, Buyer shall release DMSC Group of
any fault and shall forfeit any rights to claims against DMSC Group associated
with the Products or the receipt of the Products purchased by Buyer. Buyer further releases LSI of any liability
and waives all claims against LSI with respect to such Products. Buyer expressly acknowledges and agrees that
it shall have no right to refuse or return the Products after accepting possession
of the Products.
9.
Inspection/Acceptance.
Except as otherwise set forth in this Section, Buyer’s acceptance of
possession of the Products shall constitute an unqualified acceptance of the
Products and a waiver by Buyer of all claims with respect thereto. Notwithstanding, Buyer shall have forty-eight
(48) hours from the date in which Buyer takes possession of the Products to
inspect the Products for any discrepancies in the quantity delivered and report
such discrepancy to LSI in writing.
Buyer may provide a detailed manifest, labeling each item that is
missing as well as any supporting documentation. DMSC reserves the right to conduct an
additional inspection at its own expense.
Following such inspection period, Buyer shall no longer have the right
to claim any reimbursement for under-delivery.
10.
Time is of the Essence. Time is of the essence for each Party to
perform its obligations under this Agreement.
11.
No Exclusivity; No License. DMSC does not agree to use or sell to Buyer
exclusively. Buyer acknowledges and
agrees that any purchase of Product is on a non-exclusive basis. Nothing in this Agreement shall be construed
as creating an obligation on DMSC to transact business with Buyer. Nothing in this Agreement shall be construed
as granting any license or right to Buyer.
12.
Taxes; Additional Costs.
Buyer shall be responsible for all taxes, tariffs, duties and
application expenses based on any transactions occurring under this
Agreement. Sales tax shall be added to
the Purchase Price unless Buyer provides LSI and LSI accepts a copy of Buyer’s
valid sales tax exemption certificate.
Buyer shall be responsible for all costs and expenses related to
transportation, shipping document preparation, proper packaging and labeling
and compliance with all applicable laws, rules and regulations, including without
limitation, those relating to exporting the Product.
13.
Geographic Restrictions.
Buyer shall ensure that Products are not distributed for sale in any
United States domestic market, and that none of the Product is later
distributed, resold or transferred to a Competitor. “Competitor” means any person
that sells directly to consumers (whether through stores, the internet and/or
catalogs) and (i) has a total product mix of more
than 50% Sporting Goods as measured either by product count or by sales and
(ii) has aggregate sales to consumers through any combination of stores, the
internet and/or catalogs in excess of $500 million per year and sells Sporting
Goods or (iii) is set forth in Appendix 1 attached hereto, as subject to
change. For purposes of this definition,
“Sporting Goods” includes each of the following: (A) hard or soft
line sporting goods and equipment (including, without limitation, team sports
goods and equipment, bicycles and exercise equipment); (B) sports or athletic
footwear or apparel; (C) hunting, fishing, camping or outdoor apparel, gear,
accessories, equipment or other products (including, without limitation, long
guns/hunting rifles and ammunition) and (D) golf clubs, golf equipment, golf
apparel, golf accessories or golf services.
The Parties acknowledge that DMSC will be irreparably harmed and there
will be no adequate remedy at law for a violation of any of the covenants or
agreements of Buyer set forth in this Section.
Therefore, it is agreed that, in addition to any other remedies that may
be available to DMSC upon any such violation, DMSC shall have the right to seek
enforcement of such covenants and agreements by specific performance,
injunctive relief or by any other means available to DMSC at law or in equity.
14.
Marketing Restrictions.
Buyer shall not advertise the Product using any DICK’S Sporting Goods,
Golf Galaxy, Field & Stream, Public Lands or any other DMSC affiliate’s or
subsidiary’s name, trademark, logo, slogan, advertising, publication, printed
UPC, labels or related materials (“DICK’S Intellectual Property”). Further, before re-selling any Products that
include any DICK’S Intellectual Property or any other markings or indicators
that would otherwise identify DMSC or DMSC Group as the source of such Product
(including, but not limited to the brands identified
on Appendix 2), Buyer shall make reasonable efforts to de-tag and/or de-label
the Product and remove any such identifications of DICK’S Intellectual
Property. Upon DMSC’s request, Buyer
shall provide evidence of its compliance with this restriction. Buyer is solely responsible for ensuring that
the Products and their packaging and labeling comply with all applicable
packaging, labeling and other applicable laws.
15.
Damage; Inspection. If
Buyer is determined by DMSC to have violated Sections 13 or 14, Buyer agrees to
pay to DMSC liquidated damages in the amount of Twenty-Five Thousand Dollars
($25,000) per occurrence of such violation, plus any costs, fines, penalties
and attorney or other professional fees and expenses incurred by DMSC as a
result of such violation or otherwise associated with DMSC’s enforcement of its
rights in connection with such violation.
The Parties agree that the foregoing amount is reasonable and intended
to compensate DMSC, and not penalize Buyer, for the harm DMSC will suffer in
connection with such violation. The
right to receive such amount shall be in addition to any other rights and
remedies available to DMSC hereunder.
Buyer agrees that DMSC may periodically inspect Buyer’s books, records,
procedures and policies upon reasonable notice to confirm compliance with the
terms and conditions of this Agreement.
Any amounts due hereunder shall be paid to DMSC within ten (10) days’ of
notice of such violation.
16.
Recalls. If DMSC Group, or
any governmental authority determines that a recall campaign is necessary in
relation to any Products, DMSC may implement or require Buyer to implement a
recall campaign. In such instance, Buyer
must return the impacted Products to DMSC or destroy such Products and provide
a certificate of destruction, as determined by DMSC in its sole discretion,
subject to any obligation determined by a competent governmental authority,
including any guides or guidelines, that are applicable to the Products, which
must take precedence and be followed by the Parties. If a recall campaign is implement
at DMSC’s option, and if such recall arose from DMSC’s negligence or willful
misconduct, DMSC will be liable for Buyer’s actual, reasonable, and documented
costs associated with the recall campaign.
For greater clarity, DMSC will, under no circumstance, be liable for any
other Losses (as defined below) arising out of or in connection with a recall
campaign, including any third-party Claims (as defined below). This provision shall survive any termination
or expiration of this Agreement.
17.
Indemnification. To the
fullest extent of the law, Buyer agrees to indemnify, defend and hold DMSC,
DICK’S Sporting Goods, Inc., all its affiliates and subsidiaries, and each of
their respective officers, employees, agents, representatives, successors, and
assigns (“DMSC Group”) harmless from and against any and all
third-party claims, actions, suits, allegations, demands, proceedings and
regulatory actions (collectively, “Claims”) and all liabilities,
damages, judgments, fines, penalties, settlements, costs, expenses (including
reasonable attorneys’ fees) and charges (collectively, “Losses”)
directly or indirectly arising from or related to a Claim from, or in
connection with: (i)
the purchase, use, re-sale or other disposition of any Product; (ii) Buyer’s
violation of any applicable law; (iii) any breach of this Agreement by Buyer;
(iv) Buyer’s negligent acts or intentional omissions; or (v) personal injury
(including death) or damage to property in any way relating to any of the
Products. Buyer shall not have the right
to settle, compromise or otherwise enter into any agreement regarding the
disposition of any indemnified Claim without the prior written consent and
approval of DMSC. This provision shall
survive any termination or expiration of this Agreement.
The
indemnification obligations stated herein shall not apply to the extent it is
finally adjudicated by a court of competent jurisdiction that the Claim
resulted solely from DMSC’s negligence or misconduct, provided however, that
until such final adjudication, Buyer shall continue to indemnify, defend and
hold DMSC harmless from and against such Claim.
Upon any such adjudication that the Claim resulted solely from DMSC’s
negligence or misconduct (and final resolution of the underlying Claim (whether
by judgment or settlement with DMSC’s prior written consent)) DMSC shall
reimburse Buyer its share of the judgment and defense costs as mutually agreed
by the Parties or as finally adjudicated by court order or judgment.
18.
Limitation of Liability. BUYER ACKNOWLEDGES, BY ITS USE OF THE
MARKETPLACE AND/OR SITE, THAT BUYER’S USE IS AT ITS SOLE RISK. THE ENTIRE RISK ARISING OUT OF ANY PRODUCTS
OR SERVICES OFFERED ON OR IN CONNECTION WITH THE MARKETPLACE AND/OR SITE, AND
ANY CONTENT, CONTENT PROVIDED BY BUYER OR DIGITAL DOWNLOADS REMAINS WITH
BUYER. IN NO EVENT SHALL DMSC GROUP BE
LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE,
OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER
PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE
ANY PRODUCTS, SERVICES, CONTENT, USER CONTENT AND/OR DIGITAL DOWNLOADS, THE
PROVISION OF OR FAILURE TO PROVIDE PRODUCTS OR SERVICES OR ANY INFORMATION,
SOFTWARE, PRODUCTS, SERVICES, USER CONTENT AND CONTENT OBTAINED THROUGH THE
MARKETPLACE AND/OR SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT
LIABILITY OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE
EXCLUSIONS MAY NOT APPLY TO YOU.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR POSTED ON THE
MARKETPLACE AND/OR SITE, THE MAXIMUM LIAIBLITY THAT DMSC SHALL HAVE IS LIMITED
TO ANY AMOUNTS ACTUALLY PAID TO DMSC BY YOU FOR THE PURCHASE OF THE PARTICULAR
PRODUCTS GIVING RISE TO A CLAIM, WHICH FOR CLARIFICATION WILL NOT EQUAL THE
AMOUNT OF PAYMENT FOR THE ENTIRE LISTING.
BUYER ASSUMES ALL RISK OF LOSS FOR SHIPPED PRODUCTS. USER INFORMATION SUCH AS ADDRESS THAT IS
INACCURATE OR INCOMPLETE MAY RESULT IN DELAYS THAT SHALL NOT BE THE
RESPONSIBILITY OF DMSC. BUYER
ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF
WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE
ALLOCATION OF RISK (INCLUDING WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND
FUNDAMENTAL BREACH OF THIS AGREEMENT) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN
BETWEEN THE PARTIES. FOR THE AVOIDANCE
OF DOUBT, THESE LIMITATIONS OF LIABILITY SHALL SURVIVE EACH PURCHASE AND ANY
TERMINATION FO THIS AGREEMENT.
19.
Use of the Marketplace.
The Marketplace (including the Site, and all content, functions and
information) is provided on an “as is” basis without any representations of any
kind, express or implied. Buyer agrees
and acknowledges that LSI and DMSC make no guarantee of the accuracy,
correctness or completeness of any content and are not responsible for any of
the following: (i) errors or omissions arising from
the use of any thereof; (ii) failures, delays or interruptions in the delivery
of any content contained on the Marketplace; (iii) losses or damages arising
from the use of the content provided by the Marketplace; (iv) conduct by Buyer
in connection with the Marketplace; or (v) content or products provided through
or in conjunction with the Marketplace.
Buyer must comply with the operating rules and policies applicable to
the Marketplace as may be published or provided by LSI or DMSC in writing
(including by posting on the Marketplace) from time to time.
20.
Confidentiality. Each
Party shall, and shall ensure that its officers, directors, consultants,
employees, subcontractors and agents (collectively, the “Representatives”),
shall keep confidential (using at least the same standard of care as it uses to
protect proprietary or confidential information of its own, but in no event
less than reasonable care) and not publish or otherwise disclose and not use
for any purpose except as permitted herein, any Confidential Information
furnished to it by the other Party pursuant to this Agreement. Either Party may disclose the Confidential
Information belonging to the other Party solely to the extent such disclosure
is necessary in the following instances: (a) complying with applicable
governmental regulations; and (b) disclosure to such Party’s representatives
whose job performance requires such access in connection with the performance
of this Agreement, provided that each Party shall take all necessary steps to
ensure that any persons permitted to access such Confidential Information are
legally bound to hold all such Confidential Information in confidence without
further disclosure to any third party. “Confidential
Information” means any information, in whatever form, whether written,
electronically stored, orally transmitted or memorialized, that is disclosed by
a Party to the other Party, including without limitation, Personal Information,
as hereafter defined, and information relating to a Party’s business
activities, know how, advertising, promotions, business plans, competitive strategies,
financial plans, forecasts and performance, vendor relationships, trade
secrets, product characteristics, demographics, information technology,
systems, market research, general customer information and other confidential
business information related to the conduct or strategy of the business of a
Party, and any other information provided to a Party which by its nature would
reasonably be considered confidential. “Personal
Information” means information which alone or in combination with other
information can identify a specific person.
For the avoidance of doubt, this definition of Personal Information
includes, but is not limited to, any information subject to data protection or
data privacy laws. Confidential
Information shall not include information that: (i)
is publicly available or in the public domain at the time disclosed; (ii) is or
becomes publicly available or enters the public domain through no fault of the
Party receiving such information; (iii) is already in the recipient’s possession
free of any confidentiality obligations with respect thereto at the time of
disclosure; (iv) is independently developed by the recipient without use of, or
reference to, any Confidential Information of the other Party; or (v) is
approved for release or disclosure by the disclosing Party without
restriction. Confidential Information
includes the terms and conditions of this Agreement.
In
addition to the restrictions set forth above, (a) the recipient shall not
duplicate or incorporate Personal Information into its own records or
databases; (b) the recipient shall establish and maintain written policies and
procedures designed to ensure the confidentiality of the Confidential
Information, copies of such polices and procedures
shall be provided to the disclosing Party upon the disclosing Party’s request;
(c) the recipient shall notify the disclosing Party promptly upon the discovery
of the loss, unauthorized disclosure or unauthorized use of the Confidential
Information shall indemnify the disclosing Party and hold the disclosing Party
harmless for such loss, unauthorized disclosure or unauthorized use, including
any costs related to notifying customers, regulators or third-parties and any
attorneys’ fees; and (d) the recipient shall establish and maintain
commercially reasonable security procedures designed to protect the
confidentiality, integrity and availability of the discloser’s Confidential
Information using and maintaining administrative, technical and physical
safeguards consistent with the highest industry standards and all applicable
laws to protect against anticipated threats or hazards to, or the unauthorized
access, disclosure or use of, the other Party’s Confidential Information. Upon request of the disclosing Party, the
recipient shall return all Confidential Information of the discloser or destroy
all such information and certify such destruction in writing to the discloser.
Each
Party acknowledges and agrees that remedies at law may be inadequate to protect
the other Party against any actual or threatened breach of this Section. Each Party agrees that any violation of any o the covenants in this Section would cause substantial and
irreparable injury to the other Party whereupon, without prejudice to any other
rights and remedies otherwise available to the non-breaching Party, the
non-breaching Party shall be entitled to seek injunctive relief in its favor
without proof of actual damages or posting of bond.
Buyer
agrees that it will not use the name of DICK’S Sporting Goods, Golf Galaxy,
Field & Stream or any manufacturer of the Product in connection with any
item it purchases from DMSC. Buyer
agrees to keep the source of the Product confidential. Buyer acknowledges and agrees that the terms
of this Agreement, including but not limited to the Purchase Price for any
Product, are confidential and shall not be disclosed to any third-parties
without the express written consent of DMSC.
This provision shall survive any termination or expiration of this
Agreement.
21.
Publicity. Buyer
shall not issue or make, or permit to be issued or made, any publicity,
advertising, press release or public statement regarding this Agreement or its
relationship with DMSC Group, including but not limited to listing DMSC on
Buyer’s website or in any presentations, without DMSC’s prior written approval.
22.
Breach; Attorney’s Fees.
Buyer acknowledges that remedies at law may be inadequate to protect
DMSC against any actual or threatened breach of this Agreement by Buyer, and,
without prejudice to any other rights and remedies otherwise available to DMSC,
Buyer agrees that DMSC shall be entitled to injunctive relief in its favor
without proof of actual damages. Buyer
expressly agrees to pay all of DMSC’s attorneys’ fees, costs and expenses
incurred in connection with DMSC’s enforcement of its rights under this
Agreement.
23.
Termination.
Notwithstanding anything to the contrary herein, DMSC reserves the
right, at its sole discretion, to suspend or terminate Buyer’s use of the
Marketplace with or without cause and without notice. If Buyer fails to comply with any term or
condition of this Agreement, DMSC may immediately terminate Buyer’s account,
deactivate Buyer’s password and seek any other remedy available at law or in
equity. The expiration or termination of
this Agreement will not terminate vested rights of either Party from any liabilities
or obligations incurred under this Agreement prior to or which by its express
terms or by their nature are intended to survive expiration or termination,
including but not limited to provisions relating to confidentiality, payment,
indemnity, and marketing/geographic restrictions.
24.
No Other Terms. This
Agreement contains the entire understanding of the Parties with respect to the
subject matter and supersedes all prior or written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof. The Parties specifically
agree that any different or additional terms or conditions contained in any
Buyer documentation related to the purchase of the Product shall be of no force
and effect. In the event of a conflict
between the terms of use on the Marketplace and/or Site and this Agreement,
this Agreement shall prevail and govern.
25.
Notice. Any notice, demand,
offer, or other written instrument required or permitted to be given pursuant
to this Agreement shall be in writing and will be deemed to have been duly
given: (a) when delivered by hand (with written confirmation of receipt); (b)
when received by the addressee if sent by a nationally recognized overnight
courier (receipt requested); (c) on the date sent by facsimile or email (with
confirmation of transmission) if sent during normal business hours of the
recipient, and on the next business day if sent after normal business hours of
the recipient; or (d) on the third day after the date mailed, by certified or
registered mail (in each case, return receipt requested, postage
pre-paid). A Party may change their
address upon written notice sent in accordance with this paragraph.
If delivered to DMSC:
DICK’S Merchandising & Supply Chain, Inc.
345 Coraopolis, PA 15108
Attention: Mark Rudolph
With a copy to: LegalDepartment@dcsg.com
26.
Miscellaneous. No
change, amendment or modification of this Agreement shall be valid or binding
upon the Parties hereto unless such change, amendment, or modification shall be
in writing and duly executed by both Parties.
The invalidity of one or more portion of this Agreement shall not affect
the validity of the remaining portions of this Agreement so long as the
material purposes of this Agreement can be determined and effectuated. Any failure of a Party enforce
or to require compliance with any of the provisions of this Agreement shall in
no way affect the validity of this Agreement, or any part hereof, and shall not
be deemed a waiver of the right of a Party thereafter to enforce any and each
such provisions. The Parties are
independent contractors and nothing in this Agreement shall be construed as
creating an employment relationship, partnership, or joint venture between the
Parties. This Agreement shall be
governed by, construed and enforced in accordance with the laws of Delaware,
exclusive of its conflicts of laws provisions. Each Party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in Allegheny
County, Pennsylvania, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient
forum, or that the venue of such suit, action or proceeding is improper. No Party hereto shall assign this Agreement
or any of such Party’s rights and duties hereunder without the prior written
consent of the other Party, which consent may be withheld in such Party’s sole
discretion. This Agreement shall be
binding upon the Parties hereto, their successors and permitted assigns.
Appendix 1
Competitors
Sporting
Goods Providers
·
Amazon,
Ltd.
·
Bass
Pro, Inc. and Bass Pro Outdoor World, L.L.C.
·
Big
5 Sporting Goods Corporation
·
Cabela’s
Inc.
·
Camping
World Holdings, Inc. (e.g., Gander Mountain Company)
·
Canadian
Tire Corporation, Limited and FGL Sports Ltd. (e.g., Sport Chek, Hockey
Experts, Sports Experts, National Sports, Intersport, Pro Hockey Life and
Atmosphere)
·
City
Sports, Inc.
·
Dunham’s
Athleisure Corporation (Dunham’s Sports)
·
Fanatics,
Inc. FansEdge and Fanatics Authentic
·
Foot
Locker, Inc. (e.g., Foot Locker, Lady Foot Locker, Kids Foot Locker,
Footaction, Champs Sports, Eastbay and CCS)
·
Gap,
Inc. dba Athleta
·
Golf
& Tennis Pro Shop, Inc. (PGA Superstores)
·
Henry
Modell & Company, Inc. (Modell’s)
·
Hibbett
Sports, Inc.
·
L.L.
Bean, Inc.
·
lululemon
athletica Canada, Inc.
·
Michigan
Sporting Goods Distributors Inc. (MC Sports)
·
OSC
Sports, Inc. (Olympia Sports)
·
Recreational
Equipment, Inc. (REI)
·
Scheels
All Sports, Inc.
·
Sportsman’s
Warehouse, Inc.
·
The
Finish Line, Inc.
·
UFA
Co-operative Limited (e.g., Wholesale Sports Outdoor Outfitters)
·
Varsity
Brands, Inc. (e.g., BSN Sports)
·
Versa
Capital Management, LLC (Vestis Retail Group, LLC, Bob’s Stores, Eastern
Mountain Sports, Inc. (EMS), Sports Chalet, Inc.)
·
Worldwide
Golf Enterprises, Inc. (e.g, Roger Dunn Golf Shops,
The Golf Mart, Van’s Golf Shop, Golfer’s Warehouse, Edwin Watts Golf Shops,
Uinta Golf, Worldwide Golf Shops)
Team
Dealers
·
Eurosport
·
BSN
Sports
·
Sports
Endeavors (Soccer.com)
·
Squad
Locker
Sports
Software Providers
·
Active
Network, including, but not limited to, eteamz and LeagueOne
·
Blue
Star Sports, including but not limited to, Bonzi, Goalline
Solutions, PointStreak, and League Lineup
·
Demosphere
·
Got
Soccer
·
League
Apps
·
Sports
Illustrated (SI) Play, including, but not limited to, League Athletics, Sports
Signup and iScore
·
Sports
Engine, including but not limited to Kyck, Rally Up,
and Team Unify
·
Team
App
·
Team
Snap
* As described in the
definition of “Sporting Goods Provider,” “Team Dealer” and “Sports
Software Provider” this list includes, with respect to each entity listed
above, (A) its successors and assigns (whether by sale, merger, consolidation,
name change, or otherwise), (B) any entity that controls, is under common
control with or is controlled by such entity and (C) any division, affiliate,
business unit, subsidiary or franchisee of such entity or of any entity covered
by the foregoing clauses (A) and (B).
Appendix 2
Private Brands
·
CALIA
·
DSG
·
Alpine Design
·
VRST
·
Quest
·
Primed
·
Fitness Gear
·
Top Flite
·
Nishiki
·
Ethos
·
Tommy Armour
·
Field & Stream
·
Walter Hagen
·
Lady Hagen
·
P-TEX
·
Monarch
·
DBX
·
Northeast Outfitters
·
Jawbone Tackle Co.
·
MAXFLI
·
Rec League
*This list may be updated by DMSC from time to time.