STANDARD TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE. The terms and conditions set forth set forth herein between Elegance Brands, Inc. d/b/a Elegance Brands (hereinafter referred to as “Seller”) and the purchaser (hereinafter referred to as “Buyer”) of Products (hereinafter collectively referred to as the “Products”) by Buyer in this transaction are limited to the terms and conditions (i) specified herein and (ii) if applicable, to a written Distribution Agreement or other written agreement between Buyer and Seller that explicitly supersedes these terms and conditions. Any additional or conflicting terms - whether or not material - shall not, in any manner by implication, by waiver, or otherwise, govern the relationship between Seller and Buyer. Any waiver, modification or amendment of these terms and conditions shall only be effective as against Seller if such waiver, modification or amendment is contained in a written instrument duly executed by or on behalf of Seller. Acceptance of this Agreement by Seller is specifically conditioned upon the terms and conditions set forth herein.
2. PREPAYMENT. Unless otherwise specifically agreed in writing signed by a duly authorized representative of Seller or if Buyer has received approval by a duly authorized representative of Seller for the extension of trade credit, Seller’s obligation to make delivery of the Products to Buyer shall be conditioned upon Seller’s receipt of full payment in cleared U.S. funds.
3. SHIPMENTS AND DELIVERY. Shipment dates are based upon Seller’s best judgment, subject to production limitations and schedules, and hence are not guaranteed. All sales, unless otherwise specified herein, are F.O.B. delivery to Buyer’s warehouse. Delivery to Buyer shall be deemed made upon the release of the Products to Buyer or to any third-party carrier at Buyer’s warehouse at which point all risk of loss shall pass to Buyer.
4. RETURN & REJECTION POLICY. Buyer acknowledges and agrees that Buyer has ten (10) business days to inspect the Products from the time the Products have been picked up by Buyer or its representative or after the Products have been delivered to the destination in the invoice or a place that Buyer typically receives Products from Seller. Buyer must notify Seller if the Products are being rejected as defective, damaged, and/or non-conforming (collectively “Non-Conforming”) by email sent no later than five (5) calendar days after inspection of the Products, and provide to Seller the invoice and transaction number, the Product(s) that Buyer believes are Non-Conforming, and the details of why Buyer asserts the Products are Non-Conforming. Any claim for rejected Non-Conforming Products must be accompanied by a completed Inbound/Outbound Inspection Form and a reference to Seller’s shipping number (PRO) and noted on the Delivery Receipt. Failure by Buyer to notify Seller of Products that are Non-Conforming within the aforementioned five-day period following inspection will be deemed acceptance of the Products by Buyer. Buyer shall not be allowed to return any Products after 30 days from the date that the Products are delivered to Buyer for any reason whatsoever except in the case of (i) Seller failing to adhere to food, labeling, health, packaging laws, (ii) the Product(s) being subject to an FDA-mandatory recall, or (iii) a voluntary recall initiated by Seller. Buyer is solely responsible for notifying the carrier and Seller as to any damage to or loss in transit of the Products. Seller shall have the opportunity of verifying any claimed defect before Products are accepted as Non-Conforming. Failure to comply with these provisions shall invalidate any claim for defects in Products by Buyer.
5. PRICE. All orders shall be priced in accordance with Seller’s prices in effect on the date of shipment. Except as set forth on the face thereof, Seller’s price does not include any tax or other charge now or hereafter imposed by law or regulation, domestic or foreign, upon any Product herein sold or on the production, manufacture, sale, transportation, disposal or delivery thereof. Accordingly, in addition to the price specified herein, the amount of any such tax or other charge applicable to this transaction herein shall be paid by Buyer. At its option, Seller may initially pay any such tax or other charges for Buyer’s account and thereafter invoice Buyer for same.
6. PAYMENT. Unless Buyer has received approval by a duly authorized representative of Seller for the extension of trade credit (in which case payment shall be governed by such separate trade credit agreement between Buyer and Seller): (A) Payment for all shipments hereunder shall be made by Buyer against Seller’s invoice within thirty (30) days from the date of invoice, terms net cash, unless otherwise agreed or indicated on the face hereof. A monthly interest charge of the lesser of 1.5% of the outstanding invoice amount or the highest legal interest will be charged for any late payment not received within forty-five (45) days after the payment due date noted above. If any payments from Buyer are overdue, in addition to interest, Buyer shall reimburse Seller for any costs and expenses incurred by Seller in collecting such delinquent amounts, including, without limitation, attorney’s fees and costs including fees of collection agencies. If Buyer fails to fulfill the terms of payment, Seller may defer further delivery of goods hereunder or may, at its option, cancel all further delivery of goods hereunder or may, at its option, cancel all further shipments to Buyer.
7. NO OBLIGATION OR WARRANTY REGARDING PRODUCTS LABELS. All the Products may bear Seller’s standard respective labels which Seller reserves the right to change from time to time in its sole discretion. SELLER MAKES NO WARRANTY WHATSOEVER REGARDING THE CONFORMITY OF ITS PRODUCT LABELS TO ANY PARTICULAR OR SPECIAL REQUIREMENTS OF LAW THAT MAYBE APPLICABLE WITHIN ANY JURISDICTION WHERE SELLER’S PRODUCTS MIGHT BE SOLD OR RESOLD. It shall be the sole responsibility of Buyer to ensure that labeling of the Products meets any and all particular or special requirements of law of any jurisdiction where the Products might be sold or resold. Buyer acknowledges that the labeling for the Products does or, through Buyer’s efforts, will, meet any and all particular or special requirements of law of any jurisdiction where the Products might be sold or resold. Unless otherwise specifically agreed in writing signed by a duly authorized representative of Seller, Seller shall have no obligation to label or re-label the Products in any particular or special way.
8. NO EXPRESS OR IMPLIED WARRANTIES. SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS AND HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 9. LIMITATION OF DAMAGES. (A) SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INDIRECT DAMAGES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, WARRANTY OR OTHERWISE INCLUDING ANY LOST PROFITS, OR LOST SAVINGS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. (B) IN NO EVENT SHALL THE AGGREGATE LIABILITIES OF SELLER TO BUYER ARISING OUT OF OR RELATING TO THE TRANSACTIONS, HEREIN, EXCEED THE PURCHASE PRICE PAID BY BUYER TO SELLER HEREUNDER OF THE PRODUCTS IN RESPECT OF WHICH SUCH CLAIM IS MADE.
9. INDEMNIFICATION. Buyer assumes all risk and liability for loss, damages or injury to persons or to the property of the Buyer or others arising out of the use or presence of the Products purchased hereunder. Buyer agrees to indemnify and hold harmless Seller against any liability, damages, losses, costs, and expenses in connection with any suit or claim including but not limited to, any loss of use, loss of profits, damages or injuries to persons or property arising out of or relating to any use of Products purchased by Buyer, Buyer’s customers, or other third parties.
10. CANCELLATION. Seller may cancel this Agreement at any time in the event that Buyer shall fail to perform or observe any term or condition hereof by giving Buyer ten (10) days written notice of cancellation. Cancellation hereunder shall not prevent Seller from pursuing any other remedy available to Seller by law or from seeking all such damages to which Seller may be entitled.
11. RESTRICTIONS ON USE OF SELLER’S TRADEMARKS. Seller retains all right, title and interest in all of its brand and product trademarks, both registered and unregistered, patents, copyrights and other intellectual property rights to any of the Products, and no license, express or implied of any trademarks, registered or unregistered, patents, copyrights or other intellectual property rights is granted by Seller to Buyer. Buyer’s use or display of Seller’s trademarks in the resale of the Products is subject to the following restrictions: (A) Attribution of Ownership. Any use or display of any of Seller’s trademarks by Buyer shall be accompanied by an express recognition of Seller’s rights in such trademarks. (B) In the case of a webpage or published advertisement, these legends should be displayed large enough to be easily readable and must include the appropriate registration (®) or trademark (™) symbols. Under no circumstances shall Buyer use or display any of Seller’s trademarks so as to give consumers the impression that such use or display is sponsored or approved by Seller unless otherwise agreed. Under no circumstances shall Buyer present any of Seller’s trademarks in a webpage or advertisement without identifying the business that is actually responsible for or sponsoring, the webpage or advertisement. (C) Domain Names. Buyer shall not use a domain name that incorporates all or any part of, or that is confusingly similar to any of Seller’s trademarks. (D) Meta-Tags. Buyer shall not use any of Seller’s trademarks in the meta-tags of a webpage.
12. FORCE MAJEURE. Seller shall be excused from delay or non-performance in the delivery of an order and Buyer shall have no claim for damage if and to the extent such delay or failure is caused by occurrences beyond the control of Seller including, but not limited to, market conditions; acts of God; pandemics; war; acts of terrorism; riots and civil disturbances; expropriation or confiscation of facilities or compliance with any order or request of governmental authority; strikes, labor or employment difficulties whether direct or indirect; raw material shortages; or any cause whatsoever which is not within the reasonable control of Seller. Seller shall promptly notify Buyer of the existence of any such force majeure condition and the anticipated extent of the delay or non-delivery.
13. GOVERNING LAW; CHOICE OF FORM AND JURISDICTION. In the event a dispute arises between Seller and Buyer in connection with the Products, the sale of the Products or the contract for sale of the Products, or otherwise in connection with these terms and conditions, such dispute shall be governed by the laws of the State of California. Buyer further irrevocably agrees that any legal action, suit, or proceeding arising out of, or in connection with the purchase or delivery of Products or otherwise in connection with these terms and conditions (whether for breach of contract, tortious conduct, or otherwise) shall be brought exclusively in the state or federal courts located in Los Angeles, California. Buyer hereby irrevocably accepts, and submits to, the exclusive jurisdiction of the aforesaid courts in personam, with respect to any such action, suit or proceeding and waives any and all objections to the exercise of such jurisdiction in the aforesaid courts, including any objections based upon forum non conveniens.
(*) Discontinued products are sold as is; they are non-returnable, nonrefundable, nor can they be exchanged for alternative Seller products. All sales of discontinued products are final.