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Terms & Conditions
  1. ITEMS PURCHASED.

 

  1. Seller agrees to offer to Retailer for sale the items listed in the Seller’s Price List (the “Goods”), and as updated by the Seller from time-to-time.  The Seller agrees to exercise commercially reasonable best efforts to supply Goods to the Retailer in a timely fashion. 

 

  1. The Goods are subject to availability. Seller may, in its sole discretion, decline to accept orders. 

 

  1. Seller reserves the right to make changes to the Goods that are required to conform to any applicable statutory or regulatory requirements, and the Seller reserves the right to vary styles, patterns, and colors of Goods from those advertised and samples provided.

 

  1. PRICING AND ORDERS.

 

  1. Goods will be ordered at prices and quantities as agreed to by the parties and subject to the terms and conditions of sale and shipment established by the Seller from time to time and in effect at the time Seller accepts the order.

 

  1. The Seller reserves the right to change prices upon reasonable notice to Retailer for subsequent purchases.

 

  1. PRODUCT STANDARDS. Seller will exchange goods which under proper use are faulty due to materials or workmanship within twelve months of date of delivery.

 

  1. The parties agree that payment of any taxes levied on the Goods (other than taxes based on income) shall be the Retailer’s responsibility (including, without limitation, federal, state, local, use or similar taxes), and the Retailer shall report and pay such taxes to the appropriate taxing authority as required by law.

 

  1. TITLE/RISK OF LOSS.

 

  1. All Goods shall be sent in accordance with the Seller’s then current shipping policies, including, without limitation, the use of cartons bearing external art work or labels as designated by the Seller. Unless otherwise agreed to in writing, Retailer shall pay reasonable shipping costs in accordance with its shipping instructions.

 

  1. Claims for damage to goods occurring during delivery must be noted at the time of delivery and Retailer must notify Seller within five business days of receipt of the Goods.

 

  1. Claims for non-delivery of Goods must be made within 7 days of the receipt of the invoice for such Goods.

 

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  1. Payment shall be made to Seller prior to delivery of the goods unless Seller agrees, in its sole discretion, to permit Retailer to be billed on a monthly basis. In the event Retailer is billed on a monthly basis, payment for Goods purchased hereunder shall be net thirty (30) days following the delivery of the invoice.

 

  1. For so long as any amount to be paid for Goods is owing to the Seller, title to the Goods will remain with Seller and will not pass to Retailer until Seller has received payment in full including any interest due in accordance with Section 6.c.

 

  1. If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 4% over the prime rate, or the maximum percentage allowed under applicable laws, whichever is less.

 

  1. In addition to any other right or remedy provided by law, if Retailer fails to pay for the Goods when due, Seller has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies.

 

  1. The Retailer, upon receiving possession of the Goods, shall have a reasonable opportunity to inspect the Goods to determine if the Goods conform to the requirements of this Agreement. If the Retailer, in good faith, determines that all or a portion of the Goods are non-conforming, the Retailer may return the Goods to the Seller at the Retailer’s expense. The Retailer must provide written notice to the Seller of the reason for rejecting the Goods within ten days of receipt of the Goods. Notwithstanding the foregoing, all sales are final, and Retailer may not return unsold Goods to the Seller.

 

  1. INTELLECTUAL PROPERTY. Retailer shall obtain no right, title or interest in or to any of the proprietary rights of the Seller, including without limitation, rights in or to the trademarks, trade names, slogans, copyrights, and patents owned, registered, pending registration or used by any of them.  Any such use of such intellectual property shall be by prior written consent and according to policies and guidelines communicated by the Seller.

 

  1. This Agreement is perpetual but may be terminated as to any party, for or without cause, upon 30 days written notice to the other. Any amounts due by Retailer shall be payable even after termination of the Agreement.

 

  1. DEFAULT. The occurrence of any of the following shall constitute a material default under this Agreement:

 

  1. The failure to make a required payment when due.
  2. The insolvency or bankruptcy of either party.
  3. The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
  4. The failure to make available or deliver the Goods in the time and manner provided for in this Agreement.

 

  1. REMEDIES ON DEFAULT. In addition to any and all other rights available according to law, if either party defaults by failing to substantially perform any material provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may elect to cancel this Agreement if the default is not cured within 15 days after providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default.

 

  1. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT NOT PERMITTED BY LAW (IN WHICH CASE TO THE FULLEST EXTENT PERMITTED), IN NO EVENT SHALL SELLER BE LIABLE TO RETAILER FOR ANY LOSS OF USE, REVENUE, PROFIT, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING FROM BREACH OF CONTRACT, NEGLIGENCE, TORT, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

 

  1. FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

 

  1. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place in Delaware, or otherwise mutually agreed upon by the parties.

 

  1. GOVERNING LAW. This Agreement and all documents and matters related to or arising out of this Agreement shall be construed in accordance with Delaware law.

 

  1. No Third-Party Beneficiaries. This Agreement solely benefits the Parties and their respective permitted assigns and successors and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

 

  1. NOTICES. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered or signed for, or on the third day after mailing if not signed for.

 

  1. WAIVER. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

  1. Interpretation; Severability. This Agreement has been negotiated by both Parties and shall not be construed for or against either Party. If any provision of this Agreement is asserted by any other Party and determined by a competent court to be illegal or unenforceable, such invalid provision shall be severed, and such determination shall not affect the balance of the Agreement.

 

  1. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.

 

  1. This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.

 

Deluxebase (USA) Inc, of 1201 N Orange St, Wilmington, Delaware 19801