TERMS OF USE Welcome to The Whalen Tennis Website/Store (“Site”) on the World Wide Web. Please review these Site terms of use which govern your use of and purchase of products from our Site. By accessing, browsing, or using this Site, you acknowledge that you have read, understand, and agree to be bound by these terms. If you do not agree to these terms then please do not use this Site.THE WHALEN COMPANY controls and operates this Site from its offices within the United States. Claims relating to, including the use of, this Site and the materials contained herein are governed by the laws of the United States and the State of Florida. If you do not agree, please do not use this Site. If you choose to access this Site from another location, you do so on your own initiative and are responsible for compliance with applicable local laws.SITE CONTENTS, OWNERSHIP, AND USE RESTRICTIONSThe information contained in this Site including all images, illustrations, designs, photographs, videoclips, writings and other materials that appear herein are copyrights, trademarks, trade dress or other intellectual property owned, controlled, or licensed (all of which, collectively, are herein referred to as the “Contents”) by THE WHALEN COMPANY (“THE WHALEN COMPANY”) or are the property of their respective owners. The name The Whalen Company and The Whalen Tennis logo are registered marks of THE WHALEN COMPANYPermission is granted to display, copy, distribute, download, and print in hard copy portions of this Site for the purposes of:(1) placing an order with THE WHALEN COMPANY or(2) using this Site as a shopping resource, provided you do not modify the Site and that you retain all copyright and other proprietary notices contained in the Contents.Except in connection with shopping or placing an order, none of the Contents may be copied, reproduced, distributed, republished, downloaded, displayed, posted electronically or mechanically, transmitted, recorded, in any manner mirrored, photocopied, or reproduced without the prior written permission of THE WHALEN COMPANY or the applicable copyright owner.Please note that the permission granted herein terminates automatically if you breach any of these Site terms or conditions. Any other use of the Contents on this Site including reproduction for purposes other than as noted above, and including any reproduction, modification, distribution, or republication may violate copyright or trademark laws, and, without the prior written permission of THE WHALEN COMPANY, is strictly prohibited.DISCLAIMER OF SITE WARRANTY
THE WHALEN COMPANY is providing this site and its contents on an “as is” basis and makes no representations or warranties of any kind, either express or implied, including, without limitation, warranties or conditions of title or implied warranties of merchantability or fitness for a particular purpose, and non-infringement. Although THE WHALEN COMPANY believes the content to be accurate, complete and current, THE WHALEN COMPANY does not represent or warrant that the information available on this site is accurate, complete, or current. Price and available information is subject to change without notice.
DISCLAIMER OF LIABILITY
In no event will THE WHALEN COMPANY BE LIABLE FOR SPECIAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOSS OF USE OR PROFITS, WITHOUT REGARD TO THE FORM OF ANY ACTION, INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTIONS, ALL ARISING OUT OF OR IN CONNECTION WITH THE USE, COPYING, OR DISPLAY OF THE CONTENTS OF THIS SITE. In an effort to provide our customers with the most current information, THE WHALEN COMPANY will, from time to time, make changes in the Contents and in the products or services described on this Site.
ABOUT OUR PRICES
The prices advertised on this Site are for Internet orders. Prices and the availability of items are subject to change without notice.
We reserve the right to limit sales, including the right to prohibit sales to re-sellers. We are not responsible for typographical or photographic errors.
USER COMMENTS, FEEDBACK, AND OTHER INFORMATION SUBMISSIONS PROVIDED BY YOU
You agree that any material, information, and ideas that you transmit to this Site or otherwise provide to The Whalen Company (“Transmissions”) shall be and remain THE WHALEN COMPANY’S property.
All Transmissions will be treated as non-confidential and non-proprietary and THE WHALEN COMPANY shall be under no obligation of any kind with respect to such information and shall be free to reproduce, use, disclose, and distribute the Transmissions to others without limitation. Additionally, THE WHALEN COMPANY shall be free to use any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever including, but not limited to, developing, manufacturing, or marketing products incorporating such information. You further agree that THE WHALEN COMPANY may use information about your demographics and use of this Site in any manner that does not reveal your identity.
In addition, you agree, and are hereby put on notice, that you are prohibited from posting or transmitting to or from this Site any unlawful, threatening, libelous, defamatory, inflammatory, pornographic, or profane material or any other material that could give rise to any civil or criminal liability under law. You are solely responsible for the content of any comments you make.
TERMS OF USE REVISIONS
THE WHALEN COMPANY may revise these terms of use by updating this posting. You agree that in the event any portion of these Site terms of use are found to be unenforceable, the remainder of these Site terms and conditions shall remain in full force and effect. By using this Site you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current terms of use to which you are bound.
Products, Prices and Pictures:
Prices for products are quoted on our website. The website contains a number of products and it is always possible that some of the prices on the website may be incorrect. We will verify prices as part of our sale procedures so that a product’s correct price will be stated when you pay for the product.
In addition to the price of the products, you may have to pay a delivery charge, which will be as stated when you pay for the product.
Payment must be made upon the submission of your order. We may withhold the products and/or cancel the contract between us if the price is not received from you in full in cleared funds.
The prices on the website include all sales taxes – where applicable.
Payment for all products must be made by following the instructions on the website.
Prices for products are liable to change at any time, but changes will not affect contracts which have come into force.
(6) Delivery policy
We will arrange for the products to be delivered to the address for delivery indicated in your order.
We will use reasonable efforts to deliver products within 2-3 working days of the date of our order confirmation. However, we cannot guarantee delivery by the relevant date. We do however guarantee that unless there are exceptional circumstances all deliveries of products will be dispatched within 7 days after receipt of payment. Some products which are custom ordered can not be guaranteed for a 2-3 day delivery. Customer products/measurements/quantities will be shipped on an “as built” schedule. We will inform you, in advance, of any orders that fall into this category.
(7) Risk and ownership
The products will be at your risk from the time of delivery. Ownership of the products will only pass to you upon the later of:
(a) delivery of the products; and
(b) receipt by us of full payment of all sums due in respect of the products (including delivery charges).
Until ownership of the products has passed to you, you will possess the products as our fiduciary agent and bailee, you will store the products separately from other goods, will ensure that the products are clearly identifiable as belonging to us, and you will ensure that they are properly stored in a safe, dry and clean environment.
We will be entitled to recover payment for the products even where ownership has not passed to you.
(8) Product warranties
Product warranty is covered by our standard terms and conditions and generally are all manufacturer warranties which are stated within the information of each individual product.
(9) Returns, refunds and replacements
Products may only be returned to us with our prior agreement, at your expense, and according to our directions. Any products returned in contravention of this Section will not be the subject of any refunds or replacements and you will continue to be liable for payment of the price of such products.
Where you return products to us in accordance with the provisions of this Section, and in our reasonable opinion those products do not conform with the warranties set out in Section [8], then you will be entitled to replacement products (where replacements are available) or, where we agree, a refund of the price paid in respect of those products.
(10) Your warranties
You warrant to us that:
(a) you are legally capable of entering into binding contracts, and you have full authority, power and capacity to agree to these terms of sale;
(b) the information provided in your order is accurate and complete; and
(c) you will be able to accept delivery of the products.
(11) Your indemnity
You hereby indemnify us and undertake to keep us indemnified against all and any liabilities, losses, damages, expenses and costs (including legal expenses and amounts paid in settlement of any demand, action or claim) arising, directly or indirectly, out of a breach by you of any of your obligations under these terms of sale.
(12) Force majeure
In this Section [12] and Section [13] below, “force majeure event” means:
(a) any event which is beyond our reasonable control;
(b) the unavailability of raw materials, components or products; and/or
(c) power failure, industrial disputes affecting any third party, governmental regulations, fires, floods, disasters, civil riots, terrorist attacks or wars.
Where a force majeure event gives rise to a failure or delay in us performing our obligations under these terms of sale, those obligations will be suspended for the duration of the force majeure event.
If we become aware of a force majeure event which gives rise to, or which is likely to give rise to, any failure or delay in us performing our obligations under these terms of sale, we will notify you forthwith.
We will take reasonable steps to mitigate the effects of the any force majeure event.
(13) Limitations of liability
Nothing in these terms of sale will limit or exclude your or our liability for: (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any matter for which it would be illegal to limit or exclude, or attempt to limit or exclude, liability.
Subject to this:
(a) our liability in connection with any product purchased through our website is strictly limited to the purchase price of the relevant product and the replacement cost of the relevant product;
(b) we will not under any circumstances be liable for any loss of income or revenue, loss of business, loss of profits or contracts, loss of anticipated savings, loss of data or waste of management or office time, or loss of goodwill or reputational damage; and
(c) we will not be liable for any losses arising out of a force majeure event.
(14) Contract cancellation
We may cancel a contract to supply products made under these terms of sale immediately by written notice to you if:
(a) you fail to pay, on time and in full, any amount due to us under any contract, or commit any material breach of your obligations to us under any contract;
(b) you cease to trade;
(c) you become insolvent or unable to pay your debts within the meaning of the insolvency legislation applicable to you;
(d) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of your business or assets, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court;
(e) the ability of your creditors to take any action to enforce their debts is suspended, restricted or prevented, or some or all of your creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
(f) any process is instituted which could lead to you being dissolved and your assets being distributed to your creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
(15) Consequences of cancellation
Upon the cancellation of a contract in accordance with Section [14]:
(a) we will cease to have any obligation to deliver products which are undelivered at the date of cancellation;
(b) you will continue to have an obligation where applicable to pay for products which have been delivered at the date of cancellation (without prejudice to any right we may have to recover the products); and
(c) all the other provisions of these terms of sale will cease to have effect, except that Sections [7 to 13 and 15] will survive termination and have effect indefinitely.
(16) Scope of these terms of sale
These terms of sale do not constitute or contain any assignment or license of any intellectual property rights, do not govern the licensing of works (including software and literary works) comprised or stored in products, and do not govern the provision of any services by us or any third party in relation to the products.
(17) General terms
Images of products on our website are for general information purposes; actual products may differ from such images in color, shape and size. All attempts by us are made to provide our customers with very accurate information and images but computer monitors, cell phone and reader type devices do not provide consistent quality control over color, shape and size.
We will treat all your personal information that we collect in connection with your order in accordance with the terms of our privacy policy use of our website will be subject to our website terms of use.
Contracts under these terms of sale may only be varied by an instrument in writing signed by both you and us. We may revise these terms of sale from time-to-time, but such revisions will not affect the terms of any contracts which we have entered into with you.
If any provision of these terms of sale is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect, and such invalid or unenforceable provisions or portion thereof will be deemed omitted.
No waiver of any provision of these terms of sale, whether by conduct or otherwise, in any one or more instances, will be deemed to be, or be construed as, a further or continuing waiver of that provision or any other provision of these terms of sale.
You may not assign, charge, sub-contract or otherwise transfer any of your rights or obligations arising under these terms of sale. Any attempt by you to do so will be null and void. We may assign, charge, sub-contract or otherwise transfer any of our rights or obligations arising under these terms of sale, at any time.
Each contract under these terms of sale is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person. The right of the parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under such contracts is not subject to the consent of any person who is not a party to the relevant contract.
Subject to the first paragraph of Section [13]: these terms of sale contain the entire agreement and understanding of the parties in relation to the purchase of products from our website, and supersede all previous agreements and understandings between the parties in relation to the purchase of products from our website; and each party acknowledges that no representations not expressly contained in these terms of sale have been made by or on behalf of the other party in relation to the purchase of products from our website.
