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Standard Terms & Conditions
Following are the general terms and conditions under which Sandals for your
neck.
(Hereinafter "SFYN") authorizes Wholesaler, Retailer or Consumer to purchase
Products or purchase products for resale.
1. OFFER, GOVERNING PROVISIONS AND
CANCELLATION. THESE TERMS AND CONDITIONS, WHEN ACCEPTED BY
WHOLESALER, RETAILER OR CUSTOMER, EXPLICITLY, BY ACCEPTANCE OF GOODS
OR PRODUCTS, OR OTHERWISE, SHALL CONSTITUTE THE ENTIRE AGREEMENT
BETWEEN SFYN AND WHOLESALER, RETAILER OR CONSUMER, AND SHALL BE
GOVERNED BY, INTERPRETED AND CONSTRUED IN ALL RESPECTS ACCORDING TO
THE INTERNAL LAWS OF THE U.S.V.I, AND THE UNITED STATES OF AMERICA,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. THE FEDERAL AND STATE
COURTS WITHIN THE U.S.V.I. WILL HAVE EXCLUSIVE JURISDICTION TO
ADJUDICATE ANY DISPUTE ARISING OUT OF THIS AGREEMENT. BOTH PARTIES
EXPRESSLY CONSENT TO: (A) THE PERSONAL JURISDICTION ON OF THE
FEDERAL AND STATE COURTS WITHIN THE U.S.V.I. , U.S.A.; (B) SERVICE
OF PROCESS BEING EFFECTED UPON IT BY CONFIRMED TELECOPIER MESSAGE OR
REGISTERED MAIL SENT TO THE ADDRESSES SET FORTH ON THE WHOLEALE
APPLICATION; AND (C) BE BOUND BY ORDERS OF SUCH COURTS. THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY
THE PROVISIONS OF THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS.
No order may be cancelled or altered by Wholesaler, Retailer or
Customer except upon terms and conditions acceptable to SFYN, as
evidenced by SFYN's written consent. SFYN has the contractual rights
to terminate, cancel, modify or amend its Standard Terms and
Conditions for any and all orders.
2. MINIMUM ORDERS. SFYN requires that
Wholesaler, Retailer or Customer place minimum orders for certain
products, as set forth in its current wholesale price list, as
published from time to time.
3. DELIVERY AND DELAY.
3.1. All quoted delivery dates and/or periods are approximate. The delivery
periods shall commence when SFYN shall have acknowledged receipt of complete
specifications and/or applicable documents required to effect shipment, such as
import license, exchange permit, shipping instructions, etc. Product, title to
Product, and risk of loss or damage in transit shall pass to Wholesaler,
Retailer or Customer at the point where SFYN has fulfilled its obligations
under the shipping term specified in this contract, as described in INCOTERMS
l980 (published by the International Chamber of Commerce, Paris, France);
provided that if payment shall be made under a letter of credit, SFYN shall
have a security interest in the goods shipped until acceptance of the related
draft or drafts by the bank confirming such credit.
3.2. SFYN reserves the right to make delivery in installments, unless otherwise
expressly stipulated in this contract; and all such installments, when
separately invoiced, shall be paid for when due per invoice, without regard to
subsequent deliveries. Delay in delivery or nonconformity of any installment
shall not relieve Wholesaler, Retailer or Customer of its obligations to accept
remaining deliveries. SFYN shall not be liable for any damage as a result of
any delay due to any cause beyond SFYN's reasonable control, including but not
limited to any act of God, act of Wholesaler, Retailer or Customer, embargo or
other governmental act, regulation or request, fire, accident, strike,
slow-down, war, riot, delay in transportation, delayed delivery by SFYN, and
inability to obtain necessary labor and materials. In the event of any such
delay, the date of delivery shall, at SFN's option, be extended for a period
equal to the time lost by reason of the delay.
3.3. Claims for shortages or other errors must be made in writing to SFYN
within thirty (30) days after receipt of shipment, and failure to give such
notice shall constitute unqualified acceptance and a waiver of all such claims
by Wholesaler, Retailer or Customer.
4. DESCRIPTIVE LITERATURE AND
SUBSTITUTES. Catalogues, Product brochures, photographs and other illustrations are a
general representation of the Products offered, but shall not be taken as
precise and shall not form part of this contract. SFYN reserves the right to
make changes in design, specifications or materials which in SFYN's opinion are
an improvement or necessary because of priorities or regulations established by
governmental authority or non-availability of materials from SFYN's
manufacturers.
5. STORAGE. If the Products are not shipped within fifteen (15) days after notification
to Wholesaler, Retailer or Customer that they are ready for shipping, for any
reason beyond SFYN's reasonable control, including Wholesaler, Retailer or
Customer's failure to give shipping instructions, SFYN may store such products
at Wholesaler, Retailer or Customer's risk in a warehouse or yard or upon
SFYN's premises; and Wholesaler, Retailer or Customer shall pay handling,
transportation and storage charges at the prevailing commercial rates upon
submission of invoices therefore.
6. PRICE AND PAYMENT.
6.1. The prices for the goods covered by this offer are SFYN's prices for such
goods and/or services with (i) the exclusive Warranty of repair or replacement
of defective parts as found in Paragraph 1010, and (ii) the Exclusion of
Consequential Damages and Disclaimer of Other Liabilities, as found in
Paragraph 1212, including the disclaimer of negligence, strict liability and
other tort liability, enforceable against Wholesaler, Retailer or Customer.
6.2. All prices listed are payable in United States Dollars. Except as
otherwise set forth in this offer, payment shall be by cash in advance. The
valuations or devaluations of the United States Dollar in reference to other
currencies shall not affect the prices quoted or acknowledged.
7. TAXES AND OTHER CHARGES
. Any manufacturer's tax, occupation tax, use tax, sales tax, excise tax,
value-added tax, duty, custom, inspection or testing fee, or any other tax, fee
or charge of any nature whatsoever imposed by any governmental authority on or
measured by the transaction between SFN and Wholesaler/Retailer shall be paid
by the Wholesaler/Retailer or purchaser in addition to the prices quoted or
invoiced. In the event the SFN is required to pay any such tax, fee or charge,
Wholesaler/Retailer shall reimburse SFN therefore.
8. SHIPMENT.
8.1. Prices are F.O.B. SFYN Warehouse (or at SFYN's option SFYN's manufacturer
or manufacturer's warehouse) and any charges SFN may be required to pay or
collect with respect to the sale, purchase, delivery, storage, processing, use,
consumption or transportation of the goods shall be for Wholesaler, Retailer or
Customer's account.
8.2. Method and route of shipment will be at the discretion of SFYN unless
Wholesaler, Retailer or Customer shall specify otherwise and any additional
expense of the method or route of shipment specified by Wholesaler, Retailer or
Customer shall be borne by Wholesaler, Retailer or Customer.
9. PACKING AND DOCUMENTS. Prices include SFYN's standard commercial packing, which will vary depending
on whether shipment is made by air, land or ship. Purchaser shall bear any
additional expenses required to satisfy Wholesaler, Retailer or Customer's
specifications. Packages will be marked in accordance with Wholesaler, Retailer
or Customer's instructions and SFYN shall furnish complete packing lists and
such other information as may be necessary for shipment. In the case of
international shipments, Wholesaler, Retailer or Customer shall supply SFYN
with all necessary information and assistance for the most expeditious
clearance of each shipment. No shipping containers may be returned to SFYN
unless such return is accepted in advance by SFYN in writing and unless all
return freight is prepaid by Wholesaler, Retailer or Customer.
10. WARRANTIES.
10.1. SFYN warrants the Product it manufactures and supplies to be free from
defects in materials and workmanship for a period of ninety (30) days from date
of purchase. If within such period the product shall be proved to SFYN's
satisfaction to be defective, such Product shall be repaired or replaced at
SFYN's option. SFYN's warranty obligations shall be limited to such repair or
replacement shall be Wholesaler, Retailer or Customer sole and exclusive remedy
and shall be conditioned upon
SFYN's receiving written notice of any alleged defect within ten (l0) days
after its discovery and, at SFYN's option, return of such Products to SFYN,
F.O.B. its warehouse. This warranty shall not apply to product components not
manufactured by SFYN or to product components subject to negligence, accident,
damage by circumstances beyond SFYN's control or improper operation,
maintenance or storage or to other than normal use or service. As to product
components not manufactured by SFYN, the warranties obligations of SFYN shall
in all respect conform and be limited to the warranty extended to SFYN by its
manufacturer. In no event shall SFYN be liable for problems concerning
translation.
10.2. EXCEPT AS STATED IN THE FOREGOING SECTION, ALL PRODUCTS ARE PROVIDED "AS
IS" WITH NO OTHER WARRANTIES OF ANY KIND. THE FOREGOING WARRANTIES ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF NON-INFRIGEMENT, MERCHANTABILITY AND
FITNESS FOR PARTICULAR PURPOSE. SFYN, IT'S AFFILIATES, AGENTS, ASSOCIATES,
EMPLOYEES OR OFFICERS DISCLAIM ALL EXPRESS WARRANTIES INCLUDED IN ANY
MATERIALS, AND FURTHER DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES, AND NON-INFRINGEMENT OF
PROPRIETARY RIGHTS. This exclusive remedy shall not be deemed to have failed
its essential purpose so long as the SFYN is willing and able to replace
defective Products or issue a credit to Wholesaler, Retailer or Customer within
a reasonable time after Wholesaler, Retailer or Customer proves to SFYN that a
defect is involved.
11. PATENTS, TRADEMARKS AND
COPYRIGHTS.
11.1. The purchase of SFYN's Products does not entitle Wholesaler, Retailer or
Customer to employ the same in any patented process. The sale of any of SFYN's
Products may in no way be construed as an inducement by SFYN of any
infringement by Wholesaler, Retailer or Customer. The sale of SFYN Products to
Wholesaler, Retailer or Customer is not a license to use the products in
commercial ventures, sponsorship or endorsement of Wholesaler, Retailer or
Customer by SFYN. Neither this document, the sale of products to Wholesaler,
Retailer or Customer, nor the Wholesale, Retail or customer relationship shall
confer any right or license for the use by the Wholesaler, Retailer or Customer
of SFYN's Patents, Trademarks, Copyrights and other intellectual property
(collectively, "SFYN Intellectual Property"). The Patents, Trademarks and
Copyrights and other intellectual property rights in the Products (and all
versions, translations, and all derivative works thereof) are owned by SFYN and
shall remain the exclusive property of SFYN.
11.2. Wholesaler, Retailer or Customer shall not sell, offer to sell, or
distribute sandals or any other product covered by SFYN Patents (as referenced
herein-below) through any person-to-person auction format nor another
peer-to-peer format or knowingly sell to others that do so. SFYN DOES NOT GRANT
WHOLESALER, RETAILER OR CUSTOMER ANY LICENSE, AND SFYN HEREBY DISCLAIMS ANY
IMPLIED LICENSE, UNDER ITS PATENTS TO SELL, OFFER TO SELL, OR DISTRIBUTE ANY
PRODUCT COVERED THEREBY (for example, CASHFLOW 101, CASHFLOW for Kids AND
CASHFLOW 202) THROUGH ANY PERSON-TO-PERSON AUCTION FORMAT OR ANY OTHER
PEER-TO-PEER FORMAT. Any such act by Wholesaler, Retailer or Customer is a
violation of SFYN's patents.
11.3. Without the express written consent of SFYN, Wholesaler, Retailer or
Customer shall not use any of the SFYN Intellectual Property. Wholesaler,
Retailer or Customer understands that SFYN is not obligated to grant permission
to use of such SFYN Intellectual Property even for purposes of allowing the
Wholesaler, Retailer or Customer to advertise or market products and no such
license for use of SFYN Intellectual Property is granted or implied. All
requests for permission to use any SFYN Intellectual Property must be submitted
in writing. Permission for such use is granted on a case-by-case basis and in
writing only. Wholesaler, Retailers or Customers who have requests for
permission pending for use shall not use the SFYN Intellectual Property until
the Wholesaler, Retailer or Customer has received written authorization, which
will outline the terms and conditions that Wholesaler, Retailer or Customer
must agree to follow in order to use the SFYN Intellectual Property if
permission is granted.
12. EXCLUSION OF CONSEQUENTIAL
DAMAGES AND DISCLAIMER OF LIABILITY. SFYN's liability with respect to breaches of warranty shall be limited as
provided in Paragraph 1010. With respect to other breaches of contract between
SFYN and Wholesaler, Retailer or Customer, SFYN's liability shall in no event
exceed the contract price. SFYN SHALL NOT BE SUBJECT TO AND DISCLAIMS: (l) ANY
OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF
WARRANTY, (2) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS (INCLUDING
NEGLIGENCE AND STRICT LIABILITY) OR ARISING UNDER OTHER THEORIES OF LAW WITH
RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SFYN, OR ANY UNDERTAKINGS,
ACTS OR OMISSIONS RELATING THERETO, AND (3) ALL CONSEQUENTIAL, INCIDENTAL AND
CONTINGENT DAMAGES WHATSOEVER. Without limiting the generality of the
foregoing, SFYN specifically disclaims any liability for penalties (including
administrative penalties), special or punitive damages, damages for lost
profits or revenues, loss of use of products or any associated equipment, cost
of capital, facilities or services, downtime, shut-down or slowdown costs,
spoilage of material, or for any other types of economic loss. Pricing of
products was established upon the basis of these limitations of liability.
13. TECHNICAL INFORMATION. Any sketches, models, samples or designs submitted by SFYN shall remain the
property of SFYN, and shall be treated as confidential information unless the
SFYN has in writing indicated a contrary intent. No use or disclosure of such
sketches, models and samples, or any design or production process or techniques
revealed thereby, shall be made without the express written consent of the
SFYN.
14. WHOLESALER, RETAILER OR CUSTOMER
PROPERTY. Any property of Wholesaler, Retailer or Customer placed in SFYN custody for
performance of a supply contract is not covered by insurance, and no risk is
assumed by SFYN in the event of loss or damage to such property by fire, water,
burglary, theft, civil disorder or any accident beyond the reasonable control
of SFYN.
15. SEPARABILITY. If any provisions of these terms and conditions of Sale shall be deemed
illegal or unenforceable, such illegality or unenforceability shall not affect
the validity and enforceability of any legal and enforceable provisions which
shall be construed as if such illegal and unenforceable provision or provisions
had not been included, unless such illegality or unenforceability would destroy
the underlying business purpose of these terms and conditions.
16. ALLOCATION OF RISKS. This agreement allocates the risks of product failure between SFYN and
Wholesaler, Retailer or Customer. This allocation is recognized by both parties
and is reflected in the price of the goods. Wholesaler, Retailer or Customer
acknowledges that it has read this agreement, understands and is bound by its
terms.
17. RESERVATION OF RIGHTS. All rights not specifically granted herein to Wholesaler, Retailer or
Customer are expressly reserved to SFYN. Such reserved rights shall, without
limiting the generality of the foregoing, include rights to any derivative of
the product or information, abridgment, derivative adaptation or modification,
as well as any and all subsidiary rights in other media whether now known or
later devised. Nothing contained herein shall be construed as creating any
agency, partnership, or other form of joint venture between the parties.
18. ASSIGNABILITY. This
Agreement and the rights and duties hereunder shall not be
assignable by Wholesaler, Retailer or Customer nor shall Wholesaler,
Retailer or Customer issue, transfer and/or sublicense this
agreement except upon the prior written consent of the SFYN. By
reading the above Standard Terms and Conditions set forth herein and
the Policies and Procedures of SFYN, I agree to abide to, and that
all sales are pursuant to these Terms and Conditions and the
Policies and Procedures.
The Sandals for your neck's Copyright Agent for notice of claims
of copyright infringement on or regarding this site can be reached
as follows:
Copyright Agent
Ostrolenk, Faber, Gerb & Soffen, LLP
Attn: Max Moskowitz
1180 Avenue of the Americas
New York, NY 10036-8403
Phone: 212-382-0700
Fax: 212-382-0888
Email: copyrights@sandalsforyourneck.com
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