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I've read and agree to the terms within the Indemnification Agreement
RAM Group, Inc. (the “Company”) is manufacturing and selling personal protective equipment, specifically polyester facial masks, gaiters and RamWrist® (“Masks”) to the party identified on the accompanying invoice (the “Customer”). The Company is selling the Masks to the Customer for the purpose of the Customer providing the Masks to its employees in a non-medical environment (the “Purpose”). As a precondition to the Company being willing to sell Masks to the Customer, the Company requires the Customer to accept and agree to the release, indemnity, acknowledgment, and other terms set forth below (this “Agreement”).
Authorized Use. The Customer shall ensure that the Masks are used only for the Purpose and in compliance with all applicable laws, instructions and advice. THE CUSTOMER SHALL NOT SELL, TRANSFER, OR LOAN THE MASKS TO ANY ENTITY OR INDIVIDUAL, OTHER THAN TO ITS EMPLOYEES OR CUSTOMERS FOR THE PURPOSE. In addition, the Customer shall ensure that the Masks are used by its employees in a business professional setting only and are not being utilized in a medical setting. The Masks are being sold in an “AS-IS” condition, with all faults. Customer acknowledges that COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE MASKS, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
Acknowledgment. The Customer hereby acknowledges, recognizes, and accepts that the Masks will not comply with the requirements for Masks promulgated by the United States Food and Drug Administration (the “FDA”) or any other medical or surgical mask requirements required under laws, rules, regulations or guidelines. The FDA has established regulations regarding personal protective equipment. The Masks are not surgical masks as regulated and codified under 21 CFR 878.4040. Surgical masks are a necessity for healthcare providers to prevent the spread of infectious disease, as they create a non-disease specific barrier to airborne particles. As the Masks are not FDA-regulated surgical masks, the Company does not represent that the Masks will prevent against infection by bacteria, virus, or other pathogens, including the infection by SARS-CoV-2, which virus causes COVID-19. FOR THE AVOIDANCE OF DOUBT, THE CUSTOMER EXPRESSLY ACKNOWLEDGES, AND ACCEPTS FULL RESPONSIBILITY FOR INFORMING ANY WEARER OF THE MASKS, THAT THE MASKS WILL NOT PREVENT THE SPREAD OF SARS-CoV-2 NOR PROTECT WEARERS FROM CONTRACTING COVID-19.
Release by the Customer. THE COMPANY SHALL NOT BE LIABLE FOR, AND HEREBY DISCLAIMS, ANY AND ALL INJURIES, LIABILITIES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY AND ALL CONSEQUENTIAL, INCIDENTAL, INDIRECT, AND CONTINGENT DAMAGES), TO THE CUSTOMER, ITS EMPLOYEES OR AGENTS OR TO ANY THIRD PARTIES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR USE OF THE MASKS OR ARISING OUT OF THE CONTRACTION OR SPREAD OF ANY ILLNESS, DISEASE, INFECTION, COLD, VIRUS OR OTHER PATHOGEN, INCLUDING COVID-19, IN CONNECTION WITH THE MASKS, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHER THEORIES OF LAW OR EQUITY, EVEN IF THE COMPANY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. The Customer hereby assumes, and releases the Company from, any and all such injuries, liabilities, and damages now existing or hereafter arising.
Indemnification; Insurance. The Customer specifically agrees, at its sole cost and expense, to indemnify, defend, and hold harmless the Company and the officers, directors, employees, servants, agents, subsidiaries, and affiliates of the Company from and against any and all losses, claims (including, without limitation, claims for personal injury or death), damages, liabilities, costs, and expenses (including attorneys’ fees and legal expenses) (collectively, “Losses”) asserted against, imposed upon or incurred by any of them, directly or indirectly, by reason of or resulting from (a) the use of the Masks by the Customer or any of its employees or agents or by third parties, (b) the contraction or spread of any illness, disease, infection, cold, virus or other pathogen, including COVID-19, in connection with the Masks, (c) the negligence or recklessness of, willful misconduct of, or violation of applicable laws, ordinances, or regulations by the Customer or any of its employees or agents or third parties, (d) any claim made for injury to person (including death) or damage to property arising from or relating to acts or omissions of the Customer or the Customer’s employees or agents, or (e) the breach by the Customer of any representation, warranty, covenant, or other obligation in this Agreement. The Customer further agrees to reimburse the Company and the officers, directors, employees, servants, agents, subsidiaries, and affiliates of the Company for any and all legal and other expenses incurred by any of them in connection with investigating or defending against such Losses. The Customer shall not settle any third party claim for which it is required to indemnify the Company hereunder without the prior written consent of the Company. At the Customer’s expense, the Customer agrees to carry, with reputable insurance companies, insurance coverage of the types and in the amounts reasonably requested by the Company from time to time. The Customer shall ensure that the Company is named as an additional insured on such insurance policies, and the Customer shall provide the Company with certificates of such insurance upon request. This Section shall survive the termination or expiration of this Agreement.
Entire Agreement; Governing Law. This Agreement constitutes the entire agreement as to the subject matter hereof, superseding all prior oral and written negotiations, representations, understandings and agreements between the parties on the subject matter hereof; and there are no conditions to this Agreement which are not expressed herein. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Wisconsin, USA, without reference to any conflicts of laws provisions. Any dispute arising from or in connection with this Agreement will be resolved by arbitration, which will occur in Milwaukee, Wisconsin and pursuant to the rules of the American Arbitration Association.
In consideration of the Company’s willingness to supply Masks to the Customer, and intending to be legally bound, the Customer accepts and agrees to the terms of this Agreement. All sales on Masks are final.
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