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DEALER TERMS & CONDITIONS
1. Products and Pricing.
East Texas Machining & Manufacturing, LLC d/b/a FoldAR (“FoldAR”), will make available for sale to the dealer identified in the Dealer Application, to which these Terms and Conditions are attached and incorporated therein (“Dealer”), the products at the prices identified in the price list provided by FoldAR (the “Price List”), upon the terms and subject to the discounts otherwise provided herein (together with the Dealer Application, the “Agreement”). FoldAR may, at its sole discretion, and without incurring any liability to Dealer, change the features of, or discontinue the manufacture, license, or sale of any of its products. The prices of products will be subject to change from time to time and FoldAR will provide Dealer with written notice 30 days in advance of the effective date of any increased in any price in the Price List; provided, however, that FoldAR may decrease a price without notice. Price changes will apply to corresponding products that are ordered by Dealer on or after the effective date of a price change. All orders are subject to acceptance and approval by FoldAR. FoldAR will not be liable for failure or refusal to accept any order, nor for failure to fulfill any accepted order. FoldAR charges actual shipping costs on all orders. All FoldAR shipments are shipped without insurance unless specifically selected by and paid for by the purchaser at time of order placement. Title and risk of loss pass to the purchaser at the point of shipment, which is defined as the moment custody or control of freight is transferred to a 3rd party carrier or shipper. If freight is lost, damaged, or destroyed enroute to purchaser’s location, there is no remedy expressed, implied, or offered by FoldAR unless freight insurance has been selected and purchased by the purchaser at time of order placement or at the time of freight arrangement.
2. Payment Terms; Minimum Volume.
a. The terms of Dealer’s payment for its initial order will generally be Credit Card, ACH, or Wire Transfer upon purchase. After the Dealer’s first advance purchase, and upon approval, Dealers will be provided Net30 payment terms, i.e., payments must be received no later than 30 days after the date of an invoice. Any late payments will accrue interest at the rate of 1.5% per month.
b. Stocking Dealers must purchase at least $25,000.00 worth of products from FoldAR within each calendar year of the term of this Agreement in order to maintain its status as an authorized dealer (pro-rated for any partial year).
c. All credit card transactions by Dealer will be subject to, and Dealer will be invoiced for, a 1.5% convenience fee, based upon the amount of the transaction. For security reasons, credit card numbers cannot be transmitted to FoldAR via e-mail and Dealer agrees not to do so.
3. Bulk-Purchase Discount.
FoldAR may confer a discount in an amount to be determined by FoldAR in its sole discretion to orders that ship directly from the factory for orders of more than 25 FoldAR products at a time.
4. Credit Acceptance.
FoldAR reserves the right to periodically check Dealer’s credit report, as ordinary course of business; including if no order is received within 90 days of credit application acceptance.
5. Stock Balancing.
Stock balancing returns are subject to written pre-approval by FoldAR in its sole discretion, a 20% restocking fee, and the requirement that Dealer subsequently purchases product having a value of at least 200% of returned order; provided, however, that returns are limited to two per calendar year (once each in February and August) and each may not exceed 5% of the value of Dealer’s purchases during the previous six-month period. Dealer is responsible for freight charges, as well as for freight charges on the stock balancing order. All items approved for return must be free of dealer markings, in sellable condition, and current products. FoldAR will not accept returns listed on a closeout or discontinued list. Anything not meeting these requirements may be donated at FoldAR’s sole discretion, with no credit issued to Dealer, and/or be subject to the restocking fee.
6. Bid Protocol/Bid Approvals.
During the term of this Agreement, Dealer agrees not to submit any bids for government contracts without FoldAR’s prior written consent and Dealer’s adherence from FoldAR’s bid-related policies as in effect from time to time. Violation of this policy may result in termination of this Agreement, as determined by FoldAR’s sole discretion.
7. Dealer Warranty and Returns.
FoldAR will use its commercially reasonable efforts to ensure that the products will be free of defects in material and workmanship for a period of one year. Excluded from this warranty are defects directly or indirectly caused by actions or inactions of Dealer or defects that are directly or indirectly related to normal wear and tear, misuse, abuse, or neglect, changes, alterations, and/or anything other than defects in material or workmanship. The foregoing warranty is for the sole and exclusive benefit of Dealer, and does not extend to any third parties, including without limitation any resellers or end users. End-users are entitled benefit of FoldAR’s published non-transferrable limited lifetime warranty. Dealer acknowledges that, before returning any products to FoldAR for warranty inspection, Dealer will need to obtain a return authorization number and ship such products, freight prepaid and insured, to FoldAR, along with the return authorization number. In the event that FoldAR determines that such product does not conform to its specifications, FoldAR will have the right to repair or replace the product or issue Dealer a refund or credit for the product, as determined by FoldAR in its sole discretion. Damaged merchandise must be noted on delivery receipt. Receipt with notations must then be forwarded to FoldAR within 72 hours for claim handling if insurance has been purchased by purchaser. If a shipment is found short, the purchaser must notify FoldAR within 72 hours of receipt of goods. Shortages claimed after 72 hours from receipt will be denied.
Dealer shall maintain, and carry in full force and effect, commercial general liability (including product liability) in a sum no less than $1 million with financially sound and reputable insurers. Dealer shall provide FoldAR with a certificate of insurance from Dealer’s insurer evidencing the insurance coverage specified in this Section. The certificate of insurance shall name FoldAR as an additional insured. Dealer shall provide FoldAR with 30 days’ advance notice in the event of a cancellation or material change in its insurance policy. Except where prohibited by law, Dealer shall require its insurer to waive all rights of subrogation against FoldAR and its insurers.
9. Disclaimer and Waiver.
ALL SALES ARE FINAL. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, PRODUCTS ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT.
10. Limitation of Liability.
EXCEPT FOR A BREACH OF SECTIONS 14, 15, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES, AND NEITHER PARTY’S LIABILITY UNDER THIS AGREEMENT WILL EXCEED THE AMOUNTS PAID AND OWED BY DEALER FOR PRODUCTS HEREUNDER.
11. Resale of FoldAR Products.
This Agreement neither grants Dealer exclusive rights, territorial or otherwise, with regard to the resale of FoldAR products, nor does it limit FoldAR’s rights to establish other points of distribution for its products.
13. Merchandising Materials.
All product merchandising materials provided by FoldAR to Dealer (e.g., display racks, fixtures, branding signs, posters and in-store artwork, and similar items) shall remain the exclusive property of FoldAR and must not be used for the promotion of non-FoldAR products.
14. Trademarks and Other Intellectual Property.
a. During the term of this Agreement and subject to the terms of this Agreement, FoldAR hereby grants to Dealer a revocable, non-exclusive, non-transferable license (without the right to grant sublicenses) to use the trademarks, trade names, and other marketing names used by FoldAR for its products (collectively, the “Marks”) and/or any copyrighted images of FoldAR, solely: (i) on or with the products, including the packaging, advertising, marketing, and other materials associated therewith; (ii) in connection with the development of Internet websites featuring the products (subject to the restrictions set forth in this Agreement); and (iii) in full accordance with all guidelines, policies, and instructions as may be promulgated from time to time by FoldAR. The license granted by the preceding sentence will not survive the termination of this Agreement.
b. Dealer acknowledges and agrees that FoldAR owns and retains all right, title, and interest in and to the Marks, and that all of Dealer’s use of the Marks inures to the benefit of FoldAR. Dealer agrees to do nothing that (a) is inconsistent with FoldAR’s ownership of the Marks, or (b) negatively impacts or affects the goodwill associated with FoldAR or the Marks, as may be determined by FoldAR in its sole discretion. Nothing in this Agreement gives Dealer any right, title, or interest in or to the Marks, other than the right to use the Marks in accordance with the terms of this license. Dealer will not attempt to register any of the Marks and Dealer recognizes the great value of the goodwill associated with the Marks, and agrees that preliminary injunctive relief would be appropriate to restrain any unauthorized use of the Marks.
c. Dealer will not do business under, or operate any websites or form of social media (e.g. Facebook, Twitter, etc.) that incorporate or feature, any name or designation containing a Mark without FoldAR’s prior written permission.
d. Dealer may have access to and become acquainted with FoldAR 's confidential and proprietary information including, but not limited to, information concerning customers and accounts, pricing, personnel, sales, marketing, financial operations and methods, designs, and trade secrets (collectively "Proprietary Information"). Except with the prior written consent of FoldAR, Dealer will not disclose any of FoldAR 's Proprietary Information directly or indirectly, or use it in any way, and will further make all reasonably necessary efforts to safeguard from disclosure any of FoldAR 's Proprietary Information during the term of this Agreement and thereafter.
e. It shall be a material breach of this Application if Dealer sells or passes off counterfeit FoldAR products. In addition, Dealer shall be obligated to inform FoldAR promptly if it is aware of the sale or passing off of counterfeit FoldAR products by any third party.
15. Delivery and Title.
Delivery to Dealer will occur, and title will pass to Dealer’s carrier, upon either (i) delivery by FoldAR to the carrier at FoldAR’s facility (if shipped from FoldAR’s warehouse) or (ii) delivery by the manufacturer at the manufacturer’s facility (if shipped directly from the manufacturer) and, upon such delivery, Dealer will be responsible for and bear the entire risk of loss or damage to the products (including any insurance charges) thereafter. Dealer hereby grants to FoldAR a purchase money security interest in the products and any proceeds Dealer receives from sales thereof until payment of the full purchase price to FoldAR. Dealer agrees to perform all acts FoldAR reasonably deems necessary or appropriate to perfect and maintain such security interest. In the event of default by Dealer of any of its obligations to FoldAR, FoldAR will have the rights, without liability to Dealer, to repossess the products sold hereunder.
16. Relationship of Parties.
Each party will be deemed to be an independent contractor with regard to the other party. Dealer is neither the sales agent nor sales representative of FoldAR and has no authority or right to bind FoldAR to any obligations with third parties.
17. Term and Termination.
a. The initial term of this Agreement will commence as of the date the Dealer Application is approved by FoldAR and the applicant’s account is set to “Dealer” (the “Effective Date”) and will continue until December 31 of the year of the Effective Date, unless terminated prior to such date in accordance with the terms of this Agreement. Thereafter, this Agreement will automatically renew for successive one-year periods, commencing on January 1 and terminating on December 31 of each year, provided that (i) Dealer is not in breach of its obligations under this Agreement and (ii) the Agreement has not previously been terminated in accordance with the terms hereof, or until a new contract intended to supersede and replace this Agreement is executed by both parties. For purposes of this Agreement, the “Term” of this Agreement will include both the initial period, as well as any successive periods. Either party may provide written notice to the other party of its desire not to have this Agreement automatically renew and, if so, this Agreement will not renew if such notice is provided at least 30 days prior to the end of the then-current one-year period.
b. Either party may terminate this Agreement immediately without cause upon providing the other party thirty (30) days written notice. Upon any termination, Dealer agrees to (i) cease holding itself out to the public as a reseller of FoldAR’s products; (ii) transfer to FoldAR all advertising and merchandising material related to products in its possession; (iii) pay immediately for any purchases from FoldAR made prior to such termination; and (iv) if requested by FoldAR, sell to FoldAR, or a party designated by FoldAR, all products in Dealer’s inventory that are in saleable condition at the cost thereof to Dealer, plus any customs duty, excise taxes, and freight paid by the Dealer. Notwithstanding any termination or expiration of this Agreement, Sections 9 et seq. will survive, in addition to any other provisions that might otherwise be expressly identified in this Agreement.
18. Compliance with Laws; Indemnification.
Dealer shall comply with all applicable laws and regulations in connection with the performance of its obligations under this Agreement, including without limitation compliance with Payment Card Industry (a.k.a. “PCI”) standards and adherence to commercially-reasonable fraud and privacy protections relating to consumer information. Dealer shall indemnify and hold FoldAR (together with its employees, officers, directors, and agents) harmless against any and all damages, costs, expenses, and liabilities resulting from third-party claims brought against FoldAR relating to or arising from Dealer’s breach of this Agreement, the performance of its obligations under this Agreement, and/or the gross negligence or willful misconduct of its employees or agents. Applicant warrants it complies with the U.S. Department of state under the international traffic in arms regulations (ITAR—22 CFR, parts 120-130) and the department of commerce under the bureau of industry and security export administration regulations (ear). Applicant agrees it will not export FoldAR product(s) outside of the U.S. Without approved export license(s) from the appropriate authority(ies). Applicant further warrant and certifies that all of the information it has provided or will provide in this agreement or in future communication with FoldAR is true, complete, and correct.
19. Privacy and Protection of Information.
FoldAR does not warrant that it can keep purchaser’s private, personal, sensitive, and/or payment information secure. Although FoldAR will make reasonable efforts to secure information transmitted through its website, by purchasing from FoldAR purchaser acknowledges that online transactions carry risk of data loss or compromise and agrees to hold FoldAR harmless for any material breach to purchaser’s information.
20. Integration; Amendment.
This Agreement, together with the exhibits hereto, each of which is expressly incorporated herein by reference, constitutes the entire agreement between the parties pertaining to the subject matter contained herein and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. The terms of this Agreement will govern in the event of any conflict with the terms of any related agreement; provided, however, that FoldAR and Dealer may enter into a Dealer Agreement or similar agreement, in which case the terms of such agreement shall prevail in the event of any inconsistencies with this Agreement. Any amendment or waiver of any terms must be made in writing and signed by both parties; provided, however, that FoldAR may modify terms of this Agreement and/or adopt or update certain policies from time to time that may apply to Dealer, including without limitation that certain Minimum Advertised Price Policy in the current form, and Dealer’s acceptance of such terms shall be established by Dealer’s subsequent submission of a purchase order to FoldAR.
21. Place of Contracting; Choice of Law; Dispute Resolution; Language.
Should any action be brought to enforce the terms of this Agreement, the courts of the State of Texas will have sole jurisdiction over any such disputes or litigation and the parties hereby consent to such jurisdiction and waive any objections thereto. This Agreement will be governed by and construed under the laws of the State of Texas, irrespective of such state's choice-of-law principles. The federal and state courts residing in Rusk County, Texas or Brazos County, Texas shall have jurisdiction over any claim brought under this Agreement, and each party consents to the personal jurisdiction of such courts. Any violation of Section 15 (Trademarks and Other Intellectual Property) of this Agreement would cause irreparable injury to FoldAR. FoldAR may, in addition to any other rights under this Agreement, seek specific performance of Section 15 and injunctive relief in any court of competent jurisdiction against any violation of Section 15. Any proceeding relating to a dispute involving this Agreement shall be conducted in English.
22. Recovery of Fees.
In the event of a dispute regarding the non-payment or collection of the price for products purchased under this Agreement, the non-prevailing party shall pay the other party’s reasonable attorneys’ fees and other costs and expenses in such amount as a court, mediator, or arbitrator shall determine.
Neither party may assign or transfer its rights or delegate its obligations under this Agreement without the other party's prior written consent, which will not be unreasonably withheld. This Agreement shall be binding upon the successors and assigns of the parties to this Agreement.
Any notices required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the following address or to such other address as either party may specify in writing to: East Texas Machining & Manufacturing, LLC (or “FoldAR”), 605 Pinedale Ave, Henderson, TX. 75654.
25. Force Majeure.
Neither party shall be liable to the other for its failure to perform any of its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to circumstances beyond its reasonable control, provided that the party experiencing the delay promptly notifies the other of the delay reasonably after such a delay becomes clearly out of the control of the party seeking a force majeure.
In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, that provision shall be severed from this Agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this Agreement.
27. Minimum Advertised Pricing.
East Texas Machining & Manufacturing, LLC (d/b/a FoldAR) designs, distributes, and markets high-quality products for tactical customers and government agencies and these products are marketed through a network of approved retailers. Effective September 1, 2021, FoldAR instituted a minimum advertised retail pricing policy (the “MAP Policy”) relating to its line of products.
Significantly, the MAP Policy does not affect a retailer’s actual resale price and it does not require, nor is it intended to discourage retailers from selling products at, above, or below FoldAR’s suggested retail price; each retailer is expected to independently determine the price at which it sells FoldAR products. The MAP Policy is simply a unilateral statement that has been adopted by FoldAR with regard to the ADVERTISING of the prices for FoldAR’s products. From time to time, FoldAR will identify minimum advertised prices (“MAP”) for its products in the Price List provided to retailers. Thereafter, all prices advertised by retailers must be at or above MAP. The MAP Policy applies to advertised prices at physical retail locations, in catalogs and other printed materials, via electronic mail, on broadcast media, and on Internet websites. Advertising of FoldAR products on third-party websites (e.g., Amazon Marketplace, eBay, GunBroker, Armslist, etc.) is prohibited without the prior written consent of FoldAR.
With respect to the Internet and websites, all information regarding products prior to the point of sale is considered advertising and subject to the terms of the MAP Policy. For the purpose of the MAP Policy, the “point of sale” is defined as that level or page at which the product can be purchased by placing it in the shopping cart or equivalent. Any pricing information displayed at or after such point is excluded from the provisions of the MAP Policy. Resellers are responsible for ensuring that their advertised prices on Internet search engines are at or above MAP.
In connection with the promotion of store-wide, category-wide, or other general discounts that have the effect of promoting FoldAR products below MAP, FoldAR products must be explicitly excluded.
Close-out, discontinued, and/or blemished products are exempted from the MAP Policy; provided, however, that such products must be clearly identified as such in all advertisements.
The failure of a retailer to adhere to FoldAR’s MAP Policy might result in one or more of the following:
- the revocation of all product discounts and marketing support for a 30-day period;
- the revocation of all product discounts and marketing support for a 90-day period; and/or
- the discontinuation of supply of affected products and/or the discontinuation of retailer’s status as an authorized reseller of FoldAR products.
All determinations will be made unilaterally by FoldAR in its sole discretion. No employee of FoldAR is authorized or permitted to request, demand, or accept any assurances of compliance from any account with regard to the MAP Policy. To help FoldAR monitor compliance with the MAP Policy, and as a condition of compliance with the MAP Policy, FoldAR is asking its Dealers to provide FoldAR with the URLs of websites operated by the retailers and the distributors’ customers.