Southwest Distributors
Terms and Conditions of Purchase
1. Acceptance of Terms
1.1. Acceptance of Terms. These Terms and Conditions of Purchase (the “Terms”) are considered an ongoing contract between you, the “Buyer", and Southwest Distributors or its subsidiary (referred to as “Seller,” “we” or “our”) and apply to your purchase of Devices (defined below) from Seller, in consideration of the mutual promises and such other good and valuable consideration. These Terms shall govern your purchase of Devices. If you do not agree to these Terms, you will not be able to purchase Devices from Seller.
1.2. Modifications to Terms. Seller reserves the right, with or without notice, to change these Terms in its sole and absolute discretion. The most current version of these Terms will supersede all previous versions.
2. Definitions
2.1. “Buyer,” “you” or “your” shall reference the person (individual applicant or company) who submits bids and/or purchases Devices from Seller.
2.2. A completed purchase will occur when the following actions have been successfully completed: (a.) These Terms have been accepted; (b.) All information requested at the point of purchase or through email verification has been properly and completely submitted; and (c.) The successfully completed purchase documentation, including accepted pricing, has been received and processed into our system.
2.3 “Device” means any new or used wireless phone, tablet, watch, computer or any electronic device or related.
2.4. “Inventory Products” (also sometimes referred to as “Products”) shall mean Seller’s Device inventory that is available for purchase, on the Website, in person, via fax, via e-mail, or over the telephone, under the terms described in Seller’s Stock Grades, as defined below.
2.5. “Listing” shall mean the content on Seller’s Website, customer portal, purchase order Bid Sheet (spreadsheet which lists the available Inventory) associated with particular Inventory Products, including, but not limited to, the description and quantity of the Inventory Products. Seller shall have the right to modify or correct any Listing at any time and such modification shall be binding on any purchase of any Inventory Products purchased after such modification has been made.
2.6. “Promotional Content” shall mean any and all information, service or content provided by Seller or its agents in any medium in connection with these Terms, including promotional content and Listings to be displayed on the Website.
2.7. “Stock Grades” shall mean Seller’s classification of Inventory Products which are designated based on testing, functionality and cosmetics.
3. Bid Process
3.1. Bid Process. Inventory Products will be sold pursuant to the process set forth in this Section 3. If you wish to bid on Inventory Products, you will be required to enter your bid via the customer portal and/or the “Bid Sheet,” (a spreadsheet which lists the available devices). We receive bids from customers and determine, acting in our sole discretion whether we accept the bids or not. However, your submission of a bid is a binding contract to buy the Products set forth in the Bid if you are deemed the winning bid. You cannot cancel or retract your bid except as provided in Section 4.2 below. If your bid is deemed the winning bid, you will be notified by email (the “Email Notification”) at the email address you provided when you registered for your account, as updated by you from time to time by notifying your account representative of your email changes. It is your responsibility to keep your email address current and to timely check your email to determine if you are the winning bidder for any bid process. Seller is not responsible for the failure of an Email Notification to reach a winning bidder for any reason, including, but not limited to, technical problems or other system error.
3.2. Winning bids. If your bid is deemed the winning bid for certain Inventory Products, you agree to promptly purchase such Inventory Products pursuant to the terms and instructions set forth in these Terms and in the Email Notification. If you fail to purchase such Inventory Products and/or pick up your purchase from our warehouse within three (3) business days from hen the date of Seller’s winning bid notification to you, you shall forfeit any right to purchase such Inventory Products. In addition, Seller may deactivate your account and password so you can no longer access the Website and, at its sole discretion, may choose to (i) contact the next highest bidder and offer to sell such Inventory Products to such bidder at such bidder’s bid price or (ii) post such Inventory Products back on the Bid Sheet.
4. Conditions to Sale Payment
4.1. Purchase Price. In consideration for your payment of the purchase price set forth in the winning bid for certain Inventory Products (the “Purchase Price”) and all applicable taxes, Seller hereby agrees to sell to you such Inventory Products at the price offered on the purchase order or bid sheet, pursuant to your compliance with the terms herein and the Email Notification. You agree to pay the Purchase Price and all applicable taxes for the Inventory Products by submitting payment by wiring the payment pursuant to information provided in the award email. You shall be solely responsible for all taxes, shipping, insurance, international duties and tariffs, US Export Compliance and handling costs and any other expenses incurred in connection with your purchase hereunder.
4.2. Canceled Bids and Purchases. Seller asserts that there may be certain bids, or purchases that we may not be able to accept or companies from whom we are not able to accept bids, and we reserve the option to cancel these bids or orders. Seller reserves the right, at our sole discretion, to refuse or cancel any bid or purchase for any reason. Seller checks for accuracy in the product and bid information, but occasionally, errors may occur. Seller shall not be held liable for such errors, which could result in the cancellation of a purchase or the removal of a product offering from inventory. In the event that an error is discovered, you will be notified as soon as possible via email communication. Should the Buyer enter a bid incorrectly, Buyer should immediately (within 24 hours) notify Seller’s Customer Service Manager of the erroneous bid. The decision to cancel the erroneous transaction will be at the sole discretion of Seller’s Customer Service Manager.
4.3. Payment Terms. You shall submit the Purchase Price to Seller under the payment terms set forth in the Email Notification or invoice that was sent to you and the Purchase Price must be paid no later than three (3) days after receipt of invoice. You agree to pay interest in the amount of 1.5% per month, or the highest rate permitted by applicable law, whichever is less, on any amount past due, pursuant to the terms set forth on each invoice until collected. Buyer shall pay to Seller all cost and expenses, including, without limitation, reasonable attorney's fees and the fees of any collection agency and court costs, incurred by Seller in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions or provisions hereunder. Seller reserves the right to offset any commissions, rebates, marketing funds, accounts payable or other amounts due to you against any outstanding amounts owed by you to Seller. Seller reserves the right to modify payment Terms at any time without formal, direct communication to you. These updates will be provided on the Website, or via Seller’s email communications. Changes to payment terms after a purchase has been made will apply to the next purchase.
4.4. Other Conditions. Seller reserves the right to hold distribution of Inventory for shipment until all documentations, as required by Seller or other entities, have been fulfilled and approved.
4.5. Identification of Seller/Debranding. You shall not sell, lease or otherwise transfer or dispose of any of the Inventory Products, unless you first Debrand such Inventory Products. “Debrand” means, in accordance with Seller’s specifications, either (a) to remove, if possible, all of the identifying marks, including, but not limited to, Seller or its affiliates’ names, logos, and other identifying marks (including but not limited to tags, labels, price stickers, bar codes, or other carton or packaging markings) from the packaging and internal software, or (b) to clearly and conspicuously mark the packaging so that it is readily apparent and obvious that the Inventory Products are used electronic devices and that they have been repaired or refurbished, as the case may be. You agree to remove or delete all Seller information, including without limitation sales receipts, addresses, phone numbers and credit card numbers that may be included with the Inventory Products. You shall not under any circumstances (i) identify Seller, its parent or any of its affiliates or divisions as the source of the Inventory Products; (ii) advertise the Inventory Products using any name relating to Seller, its parent or any of its divisions or affiliates, including but not limited to any of its other entities or private labels, in any manner; (iii) make reference to Seller or its parent or any of its affiliates or divisions in any signing or advertising; or (iv) make reference to a membership warehouse as the source of the Inventory Products
5. Delivery
5.1. The Inventory Products purchased by you shall be made available to you for pickup at the Seller facility identified in the Email Notification (the “Inventory Location”) at a time mutually agreed to by you and Seller (the “Pickup Time”). You or your agent must schedule the Pickup Time by contacting Seller pursuant to the instructions set forth in the Notification Email. You shall be solely responsible for proper loading and removal of the Inventory Products from the Inventory Location and for all shipping arrangements (including, without limitation, permits, costs and licenses), expenses (including, but not limited to, insurance) and labor. Your employees, equipment, and property, and that of your agents, enter and remain at Inventory Location entirely at your risk for any and all hazards. While on the Inventory Location, your employees and agents must observe all Inventory Location rules and regulations. You shall remove all Inventory Products from the Inventory Location within three (3) business days of receipt of notification that the Products are ready, otherwise, Seller may choose to keep such Inventory Products and refund to you the Purchase Price you paid to Seller less (i) a restocking fee equal to fifteen per cent (15%) of the purchase price, (ii) a storage charge for each of the days the Inventory Location holds the Inventory Products for you after you registered a Completed Purchase, and (iii) an optional handling fee, all as stated in the original Email Notification.
5.2. Title; Risk of Loss. You expressly acknowledge that risk of loss and liability for the Inventory Products shall pass to you when you or your agents take possession of the Inventory Products at the Inventory Location.
5.3. Acceptance. Once you have taken possession of Product you agree that you have no rights to return or refuse the product except as applicable under Section 6, Returns herein. Except as applicable under Section 6, upon receipt and possession of the Inventory Products, you agree to waive and release all claims regarding any and all aspects of the Inventory Products.
5.4. Inspection and Documentation. Seller will provide an Inventory Product manifest that will detail the contents of each container (shipping box) including unit quantity. Buyer will have no more than seven (7) business days from receipt of the Inventory Product to contest the accompanying packing slip. Seller reserves the right to inspect, count or otherwise inspect the contested discrepancy at Buyer’s premises or other location where the Inventory Products are located at its own expense.
5.5. Further Assurances. Each party agrees that it will execute and deliver, or cause to be executed and delivered, all such other instruments, and it will take all reasonable actions, as may be necessary to transfer and convey the Inventory Products to Buyer, to assure the required and timely payment therefore and to consummate the transactions contemplated herein.
5.5. Damages. Damages to the Products caused by loading or shipping should be claimed with the shipper and are not Seller’s responsibility.
6. Return Policy and Procedure
Seller has developed a written Return Policy and the policy is incorporated herein by reference. All terms of the Return Policy are binding on the Seller and Buyer as set forth below:
6.1 Conditions Precedent.
a) If a Buyer receives a Product that is not consistent with its original order, such Product may be returned for credit provided Seller is notified in writing of the issue within seven (7) business days of the date the product is received (an additional week may be allowed for international shipments), and the Product is returned to Seller in its original condition and packaging.
b) A Buyer may return Product if it is:
i) Wrong product: Product received is different from the Product purchased;
ii) Wrong quantity: Number of Products received is different from the number of Products ordered; or
iii) Device locked – i.e., FMIP. c) Seller reserves the right to determine if Products must be returned before credit is issued. Note that any credits granted can be used for future orders that originate from the same Seller entity. Seller will not issue a credit across Seller entities; for example a purchase from one subsidiary of Seller cannot result in a credit for an order involving another subsidiary of Seller.
6.2 Product Return Process.
To return a product, Buyer must obtain, complete, and return a Return Material Authorization (RMA) form to Seller. Upon completion of the RMA form, Buyer will be issued an RMA Number. A Buyer shall not return product until the RMA Number is issued or the return will be invalidated by Seller. RMA claims will be processed within thirty (30) days of Seller’s receipt of returned Products.
6.3 RMA Form & RMA Number. To obtain a blank RMA form, Buyers should contact Seller. Buyer should fill out the RMA form (missing information may result in claim being denied or delayed) and submit the RMA form. Within seven (7) business days of RMA form submission, Buyer will receive an email from Seller stating that either (a) an RMA number has been issued which authorizes Buyer to return the product to Seller, or (b) information on why an RMA number cannot be issued (e.g., missing information, RMA filed past the return time limit, etc.).
6.4 Return Shipments. To return Product, Buyer must include the assigned RMA number on all Products returned to the Seller. Specific shipping information will be communicated to Buyer when the RMA number is assigned. The RMA will be cancelled if Products are not received by the Seller within ten (10) business days after RMA is issued.
6.5 Limited Credits and No Return. In very limited cases, and in the Seller’s sole discretion, Seller may provide a credit without the customer returning any Product. For example, if the Buyer elects to keep Product that was shipped in error, Seller may choose to adjust the price charged in lieu of requiring a return shipment. Buyer should not use, sell, or return the any Product that was shipped in error until instructed to do so by the Seller.
6.6 Restocking Fee.
a.) As stated above, if a Buyer returns a Product inconsistent with the terms of the Returns Policy and/or the RMA, the Buyer may be charged a Restocking Fee of 15% of the original purchase price. Examples of returns that would be subject to a restocking fee include, but are not limited to:
i) Products delivered to a customer that were not authorized to be returned as stated in the Return Policy (authorized returns would be evidenced by issuance of an RMA #);
ii) Products returned in accordance with the Return Policy, in which inspection results in a denial of the Buyer’s return claim, or a portion thereof; or
iii) Products returned outside the Return Policy timeframe.
b.) Handling and Processing Fees. If the Buyer sends the Seller the wrong Products or the wrong amount of Products, Seller can either keep the Products and charge a restocking fee, or send them back to the Buyer who shall incur handling charges and shipping expenses.
7.0 Trade Compliance
7.1 US Export Laws. The export of the Products sold by Seller hereunder are or may be subject to the export control laws and regulations of the United States. Any resale, re-export or diversion of such items by the Buyer or its agents that is contrary to U.S. law and regulations is prohibited including: (a) the resale of such items to any person, natural or corporate entity, that is listed on a denied party list of any U.S. federal agency, or (b) the re-export of such items to any country that is listed on a prohibited country list of any U.S. federal agency. If such Buyer is aware of any attempt by any person, natural or corporate entity, to purchase the items specified herein that is listed on a denied party list of any U.S. federal agency, or the attempt by any person, natural or corporate entity, to re-export such items to any country that is listed on a prohibited country list of any U.S. federal agency, Buyer shall promptly inform Seller of such attempted purchase or re-export.
7.2 Anti-Corruption Laws. Buyer represents and warrants that it is aware of and understands its responsibilities under the U.S. Foreign Corrupt Practices Act (“FCPA”). Buyer understands the FCPA’s prohibition of paying, offering, promising or giving anything of value, either directly or indirectly, by a U.S. company, U.S. person or any other person, the affairs of which or whom are directed by a U.S. company, to an official of a foreign government, political party, state-owned enterprise, or public international organization (“Foreign Official”) for the purpose of influencing an act or decision in his or her official capacity, or inducing him or her to use his or her influence with the foreign government, political party, state-owned enterprise, or public international organization, or to receive any improper advantage in order to assist a U.S. company in obtaining or retaining business for or with, or directing business to, any person. Buyer hereby covenants and agrees that it will comply fully with the letter and spirit of the FCPA. Buyer warrants that it has not to date offered, given or promised any prohibited payment under the FCPA or any other applicable anti-corruption law or regulation in connection with establishing or maintaining any business, entering into or securing any necessary approvals or engaging in any other business-related activity with Seller
8. Confidentiality Confidential Information.
You, Seller and its agents and any additional parties involved in the payment and transfer of the Products acknowledge and agree that each will keep and maintain all information regarding transactions conducted under these Terms and Conditions of Purchase confidential, with special regard to the Purchase Price and other points of information regarding payment. All involved parties will accept responsibility to take reasonable actions to protect the confidentiality of the transaction. Notwithstanding the foregoing, you understand that Seller will collect and have access to confidential information pertaining to you. You may not make any public announcement about your transactions with Seller without Seller’s prior written approval and consent. Notwithstanding anything in this Section 8 to the contrary, any information (a) already in the public domain, (b) independently developed by the recipient without the use of or access to the other party's confidential information, or (c) released through no action or inaction by the receiving party, will not be considered confidential information hereunder. The receiving party may disclose the disclosing party's confidential information upon the order of any court of competent jurisdiction or as otherwise required by law or legal process, provided that prior to such disclosure the receiving party shall inform the disclosing party of such order, if permitted by law, in order to provide the disclosing party with an opportunity to contest such order or to seek such other protective action as the disclosing party may elect. Each Party acknowledges that the Disclosing Party would be irreparably injured by a breach of this Agreement by the Receiving Party, and that the Disclosing Party, in addition to any other remedies available at law or in equity, will be entitled to seek equitable relief, including injunctive relief and specific performance, against the breach of this Agreement (without the necessity of proving actual damages or posting a bond, cash or otherwise). This Section 8 shall survive each transaction hereunder.
9. Representations and Warranties; Indemnity
9.1. To the best of Seller’s knowledge (a) the Inventory Products are not stolen, illegally copied or ‘pirated,” (b) the Inventory Products have been fully paid for by Seller, and (c) no third party has any superior rights to, or asserted claims in connection with, the Inventory Products.
9.2. You shall indemnify and hold Seller and its subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim, demand, action, losses and/or costs, including reasonable attorneys' fees, due to or arising out of (a) your use of the Website or (b) any sale, representations made, use or handling of the Inventory Products by you or your agents.
9.3. The indemnity obligation under this Section 9 shall survive each purchase transaction hereunder.
10. “AS IS” and “WHERE IS” Warranty; Disclaimer of Implied Warranties; Limitation of Liability
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE INVENTORY PRODUCTS ARE PROVIDED BY SELLER TO YOU “AS IS” AND “WHERE IS.” SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE INVENTORY PRODUCTS OR THESE TERMS, INCLUDING WITHOUT LIMITATION THE INVENTORY PRODUCTS’ CONDITION OR QUALITY OR THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE BUYER’S INDEMNITY OBLIGATIONS SET FORTH IN THESE TERMS, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL SELLER’S LIABILITY FOR ANY AND ALL LOSSES OR DAMAGES RESULTING FROM THESE TERMS AND THE INVENTORY PRODUCTS, EXCEED THE PURCHASE PRICE PAID BY YOU TO SELLER FOR THE INVENTORY PRODUCTS AT ISSUE. SELLER SHALL NOT BE HELD LIABLE FOR ANY ERROR IN A LISTING THAT SELLER CORRECTS PRIOR TO THE PURCHASE OF THE INVENTORY PRODUCTS TO WHICH THAT LISTING APPLIES. SELLER SHALL NOT BE HELD LIABLE FOR ANY FAILURE OF BUYER TO STRICTLY COMPLY WITH ITS WARRANTIES, REPRESENTATTIONS AND OBLIGATIONS HEREUNDER, INCLUDING BUT NOT LIMITED TO THE OBLIGATIONS SET FORTH IN SECTION 13.3 BELOW. THIS LIMITATION OF LIABILITY SHALL SURVIVE EACH PURCHASE TRANSACTION.
11. Breach of these Terms
If you fail to comply with any term or condition in these Terms, Seller may immediately, terminate your account, deactivate your password and seek any other remedy available to Seller or its affiliates.
12. General Provisions
12.1. Any disputes, claims, or controversies arising out of or relating to this Agreement, except for any injunctive relief sought to protect a party’s Confidential Information, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are subject to arbitration, that are not resolved by informal, mutual agreement will be referred to and resolved solely and exclusively by binding arbitration to be conducted before the American Arbitration Association (the “AAA”), or its successor. The arbitration shall be held in Dallas, Texas before a tribunal consisting of three (3) arbitrators selected in accordance with the Commercial Arbitration Rules and regulations as promulgated by the AAA, unless specifically modified by this Agreement. Matters not addressed in this arbitration agreement shall be governed by the AAA Commercial Arbitration Rules. No waiver of any provision of these Terms shall constitute a continuing waiver, and no waiver shall be effective unless made in a signed writing. The division of these Terms into separate sections, subsections and/or exhibits and the insertion of titles or headings is for convenience of reference only and shall not affect the construction or interpretation of these Terms.
12.2. Force Majeure. Seller shall not be liable to the other party for failure or delay in performance hereunder due in whole or in part to an act of God, strike, lockout or other labor dispute, civil commotion, sabotage, fire, flood, explosion, acts of any government, terrorist acts, unforeseen shortages or unavailability of fuel, power, transportation, or supplies, and any other causes which are not within Seller’s reasonable control, whether or not of the kind specifically enumerated above.
APPLICANT TERMS AND CONDITIONS:
The New Customer Application and attached Terms and Conditions (together, the "Agreement') is entered into between the undersigned company or individual(s) ("Applicant") and MAGU GROUP, LLC ("MAGU"), doing business as Southwest Distributors. For the purpose of obtaining products from Southwest Distributors, Applicant makes the following written statements and Southwest Distributors shall be entitled to rely upon all such statements as being true and correct. By signing this Agreement, Applicant authorizes Southwest Distributors to contact the references provided to inquire about the Applicant’s business history, and further authorizes the above references to release information regarding Applicant's business history to Southwest Distributors as necessary for Southwest Distributors to make an informed decision.
Applicant acknowledges that it has read and understands the terms of this Agreement and agrees to be bound by its terms. By signing this Agreement, Applicant expressly agrees to make payment in full to Southwest Distributors for the purchases in accordance with the invoices provided to Applicant by Southwest Distributors. Applicant expressly agrees to the attached Terms and Conditions of Purchase, which are provided with this application titled “Southwest Distributors Terms and Conditions of Purchase”. Should Applicant default in any such payment, Applicant expressly agrees to pay a late charge on any amounts in default as set forth in the Terms and Conditions of Purchase and, at Southwest Distributors' sole option, all amounts owed to Southwest Distributors by Applicant shall become immediately due and payable. Applicant further agrees to pay Southwest Distributors’ reasonable attorney's fees and other costs and expenses incurred by Southwest Distributors in the collection of any obligation of Applicant pursuant hereto. This Agreement shall become effective when executed by the Applicant. Applicant hereby certifies that the information furnished under or pursuant to this Agreement is true and correct and that this information is being furnished to Southwest Distributors with the purpose of inducing Southwest Distributors to enter into this Agreement with Applicant, and understands that Southwest Distributors intends rely upon such information as accurate. Applicant certifies that this Agreement (and the representations contained herein) is true, correct and complete as of the date hereof. This Agreement supersedes all other agreements between Applicant and Southwest Distributors relating to the subject matter hereof, whether oral or written.