TERMS & CONDITIONS OF SALE
Set forth below are Terms & Conditions of Sale (“Conditions”) applicable to all purchases of product from Company, LLC (the “Company”). These Conditions are final. By placing an order to purchase products (the “Products”), you (“you” or “Customer”) agree to these Conditions without change, and alternative terms or modifications presented by you, by purchase order or otherwise, shall be deemed rejected and of no force or effect unless accepted, in writing, by a duly authorized officer of Company, LLC. The failure of Royal the Company to actively reject, either orally or in writing, any additional conflicting or contradictory terms contained in any subsequent document or communication between you and the Company relating to the transactions referred to in any order shall not constitute assent to such terms. Each order by you becomes a contract subject to these Conditions when accepted by commencement of performance by the Company.
I. PRICING AND PAYMENT TERMS
(a) Prices are for shipments as stock permits, or as soon as shipment may be arranged. Prices applicable are those in effect at the time of acceptance of an order. Customer is responsible for all taxes, including sales and use tax and excise taxes, that may apply to sale of products unless Customer timely provides Company with a valid tax-exemption or resale certificate. If Company is legally obligated to pay or collect taxes for which Customer is responsible under this Section 1(a), Company will invoice Customer and Customer agrees to pay the invoiced amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
(b) All pricing and allowances must be pre-approved in writing by Company, LLC. No claims for monies due or to become due from you shall be subject to deduction by you for any set-off or counterclaim arising out of any transaction between you and Company, LLC, regardless of when such set-off or counterclaim arose and whether it arose before or after any assignment by Company, LLC. Any deductions taken that have not been pre-approved in writing by Company, LLC are in violation of these Conditions.
(c) Standard Billing Terms for Cash Discount: Net 30 days, from invoice date.
(d) Unearned cash discounts are in violation of these Conditions and should not be deducted from payment.
(e) Any deduction taken in violation of these Conditions is an unauthorized deduction and Company, LLC will seek immediate repayment from Customer.
(f) Delinquent payments and/or unauthorized deductions may result in Company suspending Customer’s credit limit, revising Customer’s payment terms, requiring advance payment prior to shipment and/or canceling Customer’s order(s). Interest at the rate of one and one-half percent per month or the highest rate permitted by local law, whichever amount is less, shall be applied to all sums owed under any invoice that are outstanding after the due date. In addition, you shall be liable to Company for all costs of collection, including without limitation attorneys’ fees, expenses, costs of any arbitration process or court fees, and collection charges.
II. ORDER SUBMISSION, ACCEPTANCE AND LEAD TIME REQUIREMENTS
(a) COMPANY ALLOWS YOU TO COMBINE ROYAL LACE, ROYAL BRITES, GEOGRAPHICS BRANDS TO REACH MINIMUM ORDER AMOUNTS OR TO ACHIEVE DISCOUNT LEVELS. TO SERVE YOU BETTER, WE MAINTAIN ONE CUSTOMER SERVICE DEPARTMENT FOR ALL DIVISIONS TO SUPPORT ALL YOUR NEEDS.
(b) Minimum order quantity for prepaid shipments is at least $750 for standard customers & over $1,200 on shipments outside the United States, Alaska, Puerto Rico, or Hawaii; freight is prepaid only to the port of embarkation. For delivered product, carriers are chosen by Company, LLC with normal carrier freight prepaid by Company, ADDITIONAL CHARGES OCCURRING FROM THE USE OF PURCHASER SELECTED CARRIERS MAY BE BILLED TO THE PURCHASER.
(c) MINIMUM ORDER: No order accepted for less than $350.
(d) Backorders are not automatically generated. In the event there is insufficient product available at time of shipment to fulfill Customer’s entire order, Company will ship available product. Cuts will be made for the unavailable product and Customer will need to add product to its next purchase order.
(e) Orders received after 12:00 noon ET will be considered to have been received the next business day. Orders are subject to available inventory and confirmed when delivery is scheduled by Company. Orders placed in quantities more than forecasted volumes are subject to review and acceptance in writing by Company.
(f) Orders should be submitted via EDI (Electronic Data Interchange), email or fax and must list all pricing and discounts by SKU.
(g) No order changes or cancellations are accepted within the 48 hours directly preceding the requested ship date without written prior approval by Company.
(h) Changes to orders must be sent via email or fax to the Company Customer Service Department. The specific number of the original purchase order must be referenced. The change request must list the Company SKU number, any applicable price change, any additional items, any existing items to be cancelled, and a revised total order and unit quantity. Company will confirm acceptance of changes via email to Customer. If extensive changes are to be made to an existing order, it is recommended that the existing order be canceled, and a new order be submitted.
(i) Unless otherwise agreed in writing by Company, all sales are FOB Company, shipping point, and title and risk of loss or damage transfers to Customer at that point.
(j) Subject to product availability, Company’s standard lead time for product being available for shipment is estimated to be 6 business days after order acceptance by Company.
(k) Company shall have no liability to Customer in the event of any delay in delivery of product to Customer. Customer’s sole remedy for a delay in delivery of products beyond the delivery time agreed to by the Company and the Customer is to cancel the order.
III. CREDIT APPROVAL
(a) To avoid delays in the release of orders, Customer should promptly complete and submit Company’s Credit Approval Form and provide Company with all requested financial information prior to order placement.
(b) All shipments are subject to continued Company, LLC credit approval.
IV. CUSTOMER PRODUCT RETURNS/REFUSALS AND CHARGES
(a) Company warrants that Products will perform as described in their labeling and in the applicable documentation, when used in accordance with applicable instructions, for a period of one year from the date of shipment. COMPANY, LLC MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(b) Claims made against Company in connection with defective products are subject to inspection by Company and must be made in writing and received by Company within thirty (30) days after delivery or pick-up (as applicable), or they are waived by Customer. Claims for short shipments or damages that can be observed at the time of delivery or pick-up (as applicable) must be cited on the Bill of Lading signed by the Customer or made in writing and received by Company within forty-eight (48) hours after delivery or pick-up (as applicable), or they are waived.
(c) Product returns and refusals are accepted only when product is materially damaged prior to Customer delivery or pick-up (as applicable), incorrect SKU is delivered, or product is delivered to an incorrect shipping address. Customer must notify Company of a return or refusal at the time of delivery or pick-up. If refusal does not meet these conditions, all charges associated with refusal will be borne by the Customer.
(d) Notwithstanding anything herein to the contrary, in no event shall Company be liable, in connection with the sale of products to Customer and in connection with any delay in delivery of the products, for (i) lost profits or any special, incidental, indirect, consequential, punitive, or exemplary damages of any kind, or (ii) any amount in excess of the purchase price paid by Customer to Company, LLC for the products. CLAIMS OF ANY NATURE SHALL BE LIMITED TO REPLACEMENT OF DEFECTIVE MERCHANDISE.
(e) Return credits will be granted at the applicable net selling price for the product.
(f) Seven business days lead time is required on all authorized returns to arrange transportation. A Return Authorization # (RA#) is mandatory for a return. Customer must contact Customer Service who will obtain authorization from a Sales Vice President and supply it to Customer.
(g) Company will accept responsibility of freight charges incurred only as a result of an authorized refusal
or return. A Return Authorization # must be secured from Company in advance.
(h) If there is a good faith dispute with regard to an invoice, Customer shall provide Company notice and
detail of the dispute prior to the date that the disputed invoice is due and shall pay the undisputed portion as provided in this Agreement.
V. INTELLECTUAL PROPERTY; COMPLIANCE.
Company shall retain all right, title, and interest in and to any intellectual property incorporated into any product sold to Customer, including but not limited to Company’s ideas, designs, techniques, training materials, documents, reports, graphs, or charts, regardless of the format, Company delivers to Customer.
(a) Company agrees to defend or, at its option, to settle, any claim brought against Customer for infringement of any United States patent, copyright, trade secret or trademark by the sale of the Product, provided the Product is sold for use as specified by Company and to indemnify Customer against all damages and costs finally assessed by a court of competent jurisdiction against Customer under any such claim or action. Customer agrees that Royal Consumer shall be released from the foregoing obligation unless Customer has taken reasonable steps to mitigate any potential expenses and provides Company with: (i) prompt written notice of any such claim or action, or possibility thereof; (ii) sole control and authority over the defense or settlement of such claim or action; and (iii) proper and full information and assistance to settle and/or defend any such claim or action. Customer shall have the right to employ separate counsel and participate in the defense at its own expense; provided that Company shall remain in control of the defense. Except as specified above, Artel will not be liable for any costs or expenses incurred without its prior written authorization. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF COMPANY TO CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE, THE SYSTEM, OR ANY PART THEREOF.
(b) Customer shall indemnify, defend, and hold harmless Company and its directors, officers, members, managers and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorneys’ fees), that may at any time be incurred by reason of any third-party claim arising out of or relating to Customer’s use of Products, excluding only claims described in Section VI(a). Company shall have the right to employ separate counsel and participate in the defense at its own expense.
VII. LIMITATION OF LIABILITY
CUSTOMER AGREES THAT COMPANY’ CUMULATIVE, MAXIMUM LIABILITY UNDER THIS AGREEMENT REGARDLESS OF THE FORM OR CAUSE OF ACTION, SHALL NOT EXCEED THE TOTAL AMOUNT CUSTOMER PAID COMPANY FOR THE PRODUCTS PURCHASED PURSUANT TO THIS ORDER. THE PARTIES FURTHER AGREE THAT NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES OF ANY KIND FOR ANY REASON WHATSOEVER EVEN IF THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action, regardless of form, arising under this Agreement may be brought more than one (1) year after the cause of action has accrued, except that an action for nonpayment may be brought within one (1) year after the date of last payment. This shall be the parties’ exclusive remedy.
VIII. GENERAL PROVISIONS
(a) These Conditions bind Customer regarding the purchase of product from Company, LLC and supersede all prior agreements, proposals, and discussions between Customer and Company, LLC with respect to the purchase of products from Company, LLC, other than a written agreement signed by both Company, LLC and Customer. These Conditions are deemed accepted by Customer upon placement of any order for product from Company, LLC.
(b) Company, LLC reserves the right to amend or modify these Conditions at any time without prior notice. The current version of these Conditions may be found at Company, LLC’s website (www.Company, LLCpaper.com/terms and conditions) and is otherwise available upon request. No waiver of any provision of these Conditions shall be valid unless the same is in writing and signed by Company, LLC and neither party shall claim in any dispute that such terms and conditions have been waived orally or by any action or inaction of Company, LLC.
(c) These Conditions represent the entire agreement between Company, LLC and Customer and are subject to Connecticut law. If for any reason the arbitration agreement in these terms, as set forth below, is found to be unenforceable, claims related to product supplied by Company, LLC to Customer must be brought exclusively in the State and Federal Courts in Connecticut, and Company, LLC and Customer agree that they are subject to personal jurisdiction of those Courts.
(d) Company, LLC shall not be held liable or responsible to Customer nor be deemed to have defaulted under or breached these Conditions for failure or delay in fulfilling or performing any obligation under this contract when such failure or delay is caused by or results from causes beyond its reasonable control, including but not limited to fire, floods, embargoes, war, acts of war, insurrections, riots, strikes, pandemics and epidemics, lockouts or other labor disturbances, or acts of God; provided, however, Company, LLC shall use reasonable commercial efforts to avoid or remove such causes of nonperformance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.
(h) All disputes arising from or relating to the Conditions, purchases from and sales by Company, LLC, and all communications and interactions between Customer and Company, LLC shall be subject to binding, individual arbitration before a single arbitrator. Claims by Customer can only be brought in an individual capacity, and not as a class member in any class or representative proceeding. This arbitration agreement covers all complaints, demands for relief, disputes, and claims of any kind, in the broadest sense possible, that may arise between Customer and Company (“Disputes”). It covers Disputes of any kind, including statutory, regulatory, constitutional, and common law Disputes, including, but not limited to, claims involving negligence and intentional wrongdoing and tax controversies. This arbitration agreement is governed by the Federal Arbitration Act and the Commercial Arbitration Rules and Optional Appellate Rules of the American Arbitration Association (“AAA). To the extent there is a conflict between the Conditions and the AAA rules, these Conditions shall control. Disputes that involve claims of less than $15,000 US must be resolved exclusively through binding non-appearance based individual arbitration based solely on the submissions of the parties. Judgment on an arbitrator’s award may be entered in any court that has jurisdiction to do so.
To the extent that an arbitration under this agreement requires any personal appearance by the parties, their lawyers, or any witnesses, whether for hearings, conferences, or discovery, such appearances shall occur in Norwalk Connecticut, unless Customer and Company, LLC agree otherwise. The arbitration shall have the sole authority to determine all issues relating to the formation, enforceability, and interpretation of these Conditions and all questions of arbitrability. The prevailing party in an arbitration shall be entitled to recover its attorneys’ fees and all arbitration costs and expenses. This provision shall not preclude a party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.