TERMS AND CONDITIONS OF SALE
1. Governing Terms. These Terms and Conditions of Sale (“Terms”) apply to and govern the sale by
FlagShooter, Inc., a South Dakota corporation (“FlagShooter”) of all products (“Products”)
purchased from FlagShooter. FlagShooter offers to sell Products solely pursuant to these Terms and
any acceptance of Products from FlagShooter is expressly subject to and limited by these Terms. Any
additional or different terms proposed by Buyer in any offer, acceptance, confirmation or other
document are rejected by FlagShooter and do not bind FlagShooter.
2. Prices; Added Charges. The prices for Products are those established by FlagShooter. The
established prices are good only for a period of 30 days. In the event delivery, for any reason out
of FlagShooter’s control (by way of example and not limitation – labor shortages, materials
shortages, and supply chain and delivery issues) is not made prior to the end of the 30-day period,
the prices may be subject to increase to reflect then-current market prices. FlagShooter is
required by law to collect sales tax and F.E.T. taxes on Products shipped to states where
applicable. If tax exempt, a copy of Buyer’s tax-exempt certificate must accompany Buyer’s order.
Standard lead time on Custom Products is 7 to 10 business days. In stock products normally ship in
1 to 3 business days. During our busy season this will increase. If Buyer requests expedited
processing, to the extent FlagShooter is able, there will be an additional charge of $25/box. This
fee is in addition to shipping and handling charges.
3. Acceptance of Orders; All Sales Final; Order Cancellation or Change. All orders are subject to
written acceptance by FlagShooter, in FlagShooter’s discretion. FlagShooter will not ship Products
for unaccepted orders. All sales are final unless agreed upon before the order is made. Buyer may
not cancel or change an order for Products, except upon the written consent of FlagShooter. If
Buyer cancels or changes an order for Products, Buyer will reimburse FlagShooter for all
work-in-process, materials, subcontractor costs, vendor costs, internal labor costs, and any other
costs of FlagShooter associated with the cancelled or changed order, and will be liable to
FlagShooter for lost profits and any other consequential and other damages incurred by FlagShooter
as a result of such cancellation or change.
4. Payment. All payments for Products must be prepaid with Credit Card, Net 30 if with Purchase
order and approved credit or as agreed upon terms in writing before Products are shipped.
FlagShooter accepts American Express, Discover, Visa, MasterCard, bank debits and payments by phone
or mail. If extended by FlagShooter to Buyer, FlagShooter, at any time, may change or withdraw
Buyer’s credit or impose security or other arrangements to secure Buyer’s payment. All amounts past
due will incur a late charge of 1.5% per month. To secure payment by Buyer, Buyer grants
FlagShooter a first priority security interest in all Products sold to Buyer until the date the
amount for such Products has been paid. Until such time as Buyer has made payment, in full, to
FlagShooter, including late fee and other charges of FlagShooter, FlagShooter, if it so elects, may
retake from Buyer possession of the Products, wherever located, by legal process or self- help; and
Buyer agrees to provide to FlagShooter access to and possession of the Products in the event
FlagShooter determines it must retake possession of the Products. The remedies of FlagShooter
provided in these terms are not exclusive and FlagShooter may, in addition to retaking possession
of the Products, avail itself to all other rights and remedies, at law, in equity, or otherwise.
5. Title; Risk of Loss. All Products are sold FOB from such location determined by FlagShooter.
Title to and risk of loss of Products will pass to Buyer upon delivery to the carrier at such
location determined by FlagShooter.
6. Shipping.There will be no full freight allowed, or prepaid shipment accepted unless quoted and
approved in writing by FlagShooter prior to acceptance of Buyer’s order. There is a $35/pallet
charge for orders that require them All shipments are made by the means determined by FlagShooter,
in its discretion, unless specific routing instructions are furnished by Buyer. To ensure delivery
of orders, Buyer must provide FlagShooter Buyer’s delivery address and telephone number.
FlagShooter is not responsible for incomplete or inaccurate information provided by Buyer.
7. Inspection. Any Buyer claims related to Products shipped related to quantity, quality, or
damages must be made, in writing, by Buyer to FlagShooter within 10 days of receipt of Products.
Buyer will be deemed to have accepted Products absent written notice to FlagShooter within the
allowed 10-day period. All claims for damages or loss in transit must be made with the carrier.
8. Breach. Any one of the following acts by Buyer will be a material breach by Buyer of these
Terms: (a) Buyer fails to pay for any Products when due; (b) Buyer fails to accept conforming
Products; (c) the filing of a voluntary or involuntary petition in bankruptcy against Buyer,
Buyer’s insolvency, or an assignment for the benefit of creditors of Buyer; or (d) Buyer’s failure
to provide adequate assurance of performance within 10 days after demand by FlagShooter. In the
event of a breach, FlagShooter, in addition to all other rights or remedies under these Terms, at
law, or in equity and without liability to Buyer, may terminate its obligations by written notice
to Buyer. Buyer will pay all costs, including reasonable attorneys’ fees, incurred by FlagShooter
as a result of Buyer’s breach.
9. Limited Warranty. FlagShooter warrants all new Products manufactured by FlagShooter are free
from defects in materials and workmanship for a period of 1 year after delivery to Buyer or end
user. If Buyer is a distributor for FlagShooter the distributor must note to end user, the
beginning of their warranty by serial number and report it to FlagShooter. This limited warranty is
effective only if Products are properly installed and used for the purpose for which they were
intended. This limited warranty applies only to Buyer or the end user and is not transferable.
Products FlagShooter purchases and distributes to Buyer have no warranty by FlagShooter. Buyer will
need to work with the original manufacturer on defective materials and workmanship of FlagShooter
purchased products. All used, refurbished, reconditioned, or rebuilt Products have no warranty. The
only exception is when a FlagShooter is repaired after the 1 year warranty period, the Buyer or the
end user may pay a fee of $125 to have the FlagShooter refurbished if the FlagShooter is less than
3 years old. Then FlagShooter will warranty the refurbished FlagShooter for 90 days. Units over 3
years old will not be refurbished.
10. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY CONSTITUTES FLAGSHOOTER’S SOLE
LIABILITY AND OBLIGATION, AND BUYER’S SOLE REMEDY, FOR ANY BREACH OF WARRANTY OR OTHER
NONCONFORMITY OF PRODUCTS. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES.
FLAGSHOOTER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT MAY ARISE FROM
COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. FLAGSHOOTER DOES NOT EXTEND THIS
WARRANTY AND BUYER MAY
NOT TRANSFER IT, TO ANY THIRD PARTY.
11. Limitation of Liability. FLAGSHOOTER WILL IN NO EVENT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING LOST PROFITS,
WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, ARISING FROM OR RELATED
TO THE TRANSACTIONS CONTEMPLATED HEREUNDER, EVEN IF FLAGSHOOTER KNEW OR SHOULD HAVE KNOWN OF THE
LIKELIHOOD OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT
WILL FLAGSHOOTER’S TOTAL LIABILITY FOR ANY CLAIM (INCLUDING ANY WARRANTY CLAIM), WHETHER BASED
ON CONTRACT, TORT, OR OTHER LEGAL THEORY, EXCEED THE TOTAL AMOUNT BUYER PAID TO FLAGSHOOTER
FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE
THIS LIMIT.
12. Acknowledgment. Buyer acknowledges FlagShooter has agreed to sell Products to Buyer, in
reliance on the limitations of liability, disclaimer of warranties, exclusive remedies, and all
other provisions of these Terms, and such provisions form an essential basis of the bargain between
the parties, without which FlagShooter would not have agreed to sell Products to Buyer.
13. Indemnity. Buyer will defend, indemnify, and hold harmless FlagShooter and its owners,
managers, officers, employees, and agents from and against any losses, damages, claims, liabilities
and expenses, including attorneys’ fees, arising from or related to Buyer’s or Buyer’s customers’
purchase or use of Products, except in the event such losses, damages, claims, liabilities or
expenses are caused solely by a breach of FlagShooter’s warranty under Section 9 above, in which
case FlagShooter’s liability, if any, will be only to Buyer and will be limited as set forth in
Sections 10 and 11.
14. Intellectual Property. All products, designs, devices, software, firmware, documents, data,
processes, methods and other items designed, developed or produced by FlagShooter in connection
with any Products are the sole property of FlagShooter and are not “works made for hire” or
“commissioned works.” FlagShooter retains all patents, copyrights, trade secrets and other
intellectual property rights with respect to any design, process, manufacturing and other
technologies used in or resulting from the development or production of Products. Neither Buyer nor
any other person has any right or license in or to any patent, copyright, trade secret or other
intellectual property right not expressly granted by these Terms.
15. Confidential and Proprietary Information. All information Buyer obtains, directly or
indirectly, from FlagShooter which Buyer knows or should know is confidential to FlagShooter will
remain FlagShooter’s confidential information. Buyer may not disclose such information to any
person.
16. Legal Compliance. Buyer will comply with all applicable laws, regulations and administrative
rules governing the purchase and sale of Products, including export and import laws.
17. Assignment. Buyer may not assign any of its rights or delegate any of its obligations under
these Terms, whether voluntarily, by operation of law, by merger, reorganization, asset sale, stock
sale or otherwise, without FlagShooter’s prior written consent, and any purported assignment or
delegation without consent will be null and void. FlagShooter may assign its rights and/or delegate
its obligations under these Terms in its discretion and without notice to Buyer. Subject to the
foregoing, these Terms bind each party and its successors and permitted assigns.
18. Force Majeure. FlagShooter will not be liable for any delay or failure by FlagShooter to
furnish Products due to causes beyond its control, such as acts of God, fires, epidemics, floods,
riots, wars, terrorism, labor disputes, governmental actions or the inability to obtain sufficient
materials, labor, components, energy, services, facilities or transportation on commercially
reasonable terms.
19. Waiver. FlagShooter’s waiver of any right it may have or any default by Buyer will not be a
continuing waiver of such right or default or a waiver of any other right FlagShooter may have
under these Terms. No waiver by FlagShooter will be effective except pursuant to a writing signed
by FlagShooter.
20. Governing Law; Venue. The laws of South Dakota will govern the validity, performance and
construction of these Terms and any disputes arising from or relating to these Terms or the
Products. All disputes will be subject to the exclusive jurisdiction of the state or federal courts
in Minnehaha County, South Dakota, and Buyer consents to the personal and exclusive jurisdiction
and venue of these courts.
21. Read complete owner’s manual. It is the responsibility of Buyer to read the entire owner’s
manual and understand all the risks in using the products purchased from FlagShooter. All users
are to read the warnings and risks of using the products. Purchased products by FlagShooter and
sold to Buyer or the end user are required to read owner’s manual from manufacturer’s website or
request manual. FlagShooter does not take any liability for products purchased for Buyer or the end
user.
22. Entire Agreement; Amendment. These Terms constitute the entire agreement between Buyer and
FlagShooter regarding the Products and expressly supersede and replace any prior or contemporaneous
agreements relating thereto. These Terms may not be superseded, cancelled or amended except in a
writing signed by each party. No other act, course of dealing, course of performance or usage of
trade will supersede, cancel, modify or amend these Terms. If any provision of these Terms is
determined to be invalid or unenforceable, such provision will be enforced to the extent possible
and the remaining provisions will remain in full force and
effect.
