Retail Distribution Terms and Conditions
By acceptance of delivery of goods purchased by YOU, the buyer/purchaser/distributor ("Buyer") from HOUSE OF LASHES, a California Corporation ("Company" or “HOL”), Buyer agrees to the following standard terms and conditions.
- The Company agrees to sell Buyer products made by HOL ("Products") pursuant to the terms and conditions set forth herein and is deemed effective upon acceptance of any goods purchased by Buyer from Company. This document supersedes any and all prior communications between Company and Buyer.
- Effect of Orders and Payment Terms. Orders received by Company for the purchase of any Products shall not bind the Company until such order is accepted, an invoice is issued and paid for in full. No communications or other action(s) by Company shall be deemed an acceptance of an offer by Buyer, and any acceptance by the Company is conditional upon assent by Buyer to all terms and conditions as set forth herein (“Terms”). To the extent these Terms are deemed an offer to sell Products, this document expressly limits any acceptance of an offer to the Terms herein. No terms or conditions presented at any time to the Company that are different or additional to the Terms herein are accepted by the Company, and any and all such different or additional terms are hereby expressly rejected by the Company. Buyer cannot modify or alter the terms set forth herein without the prior written consent of the Company. Acceptance by Buyer of delivery of any Products, or any products from Company, shall be deemed acceptance of these Terms.
- Delivery Terms. Unless otherwise set forth in this Agreement, the Company shall deliver Products ordered to Buyer’s designated delivery address. Any risks lie with Buyer for all deliveries as soon as the Products leave the HOL warehouse, or a warehouse that is maintained by HOL. Should delivery be delayed at Buyer’s request or as a result of circumstances for which Buyer is responsible, the risk shall pass to the Buyer for the duration of the delay. Any expense incurred because of the delay shall pass to Buyer. Company’s pricing terms do not include costs for shipping, freight, taxes, customs, and/or duties. All shipping, freight and other related import/transportation costs and taxes is Buyer’s responsibility.
- Payment Terms. Unless otherwise agreed upon by the parties, Buyer shall pay invoices sent by the Company prior to delivery of any Products. Invoices are due and payable no later than by the due date indicated on the Invoice. Pricing shall be calculated on the basis of the prices in effect on the date of delivery/performance and are indicted in US Dollars (unless otherwise indicated in writing). Pricing is subject to change from time to time at Company’s discretion.
- The Company may extend credit to Buyer in the Company’s sole discretion. In the event, that the Company extends credit to Buyer, the Company reserves the right to revoke, suspend or reduce Buyer’s credit at its sole discretion and without prior notification to Buyer. The Company reserves the right to reject purchase orders and suspend shipment of goods in the event Buyer reaches the maximum limit of its credit. Buyer agrees that title to all Products with right of repossession for default shall remain with the Company until the purchase price is paid in full.
- Liability of the Company After Delivery. All claims made by Buyer for Product shortages or defective Products shall be made in writing by Buyer within 15 calendar days of receipt thereof. Buyer shall have ten (10) days from the date of receipt of Products to dispute, in writing, any invoice against product delivered. If an invoice is disputed by Buyer, Buyer shall pay the undisputed amount of the invoice in accordance with this paragraph and may be credited by Company if such dispute is found to be in Buyer’s favor.
- Buyer shall be solely liable for payment of all federal, state and/or local sales tax, Value Added Taxes (VAT), use, excise, or import tax or other charges incurred as a result of the sales of Products under this Agreement. If Buyer claims an exemption from sales or use tax, Buyer shall be responsible for providing adequate proof and all documentation to support Buyer's claim for exemption and shall be responsible for related processing.
- Intellectual Property Rights.
- Force Majeure. Neither Party shall be liable for any default or delay in the performance of its obligations under this Agreement (a) if and to the extent that the default or delay is due to causes beyond the non-performing Party’s reasonable control, such as fires, floods, earthquakes, acts of God, wars, riots, civil disorders, rebellions or revolutions, terrorism, or any similar cause beyond the reasonable control of such Party (a "Force Majeure Event"), (b) provided that the non-performing Party is without fault or negligence and the default or delay could not have been prevented by reasonable precautions, and (c) provided in all cases that the Force Majeure is a proximate cause of the claimed delay associated with this Agreement. The term "Force Majeure Event" shall not, however, mean or include any delay arising from or as a result of Buyer's financial difficulties. Notwithstanding any other term or condition of this Section, Force Majeure shall not provide an excuse for failure to make a payment when due.
- Compliance with Laws. Buyer covenants that it is in compliance, and warrants that it shall continue to comply, with all applicable Federal, State and local laws, rulings, and regulations of the United States of America, including the Foreign Corrupt Practices Act, 15 U.S.C. § 78 et seq. (the "FCPA"), and all laws and regulations of Buyer's place of performance, throughout the term of this Agreement.
- Limitation of Liability. In no event shall the Company be liable for any special, incidental, indirect or consequential damages in connection with this Agreement, whether based on action or claim in contract, intellectual property infringement, equity, indemnity, tort (including negligence), intended conduct, strict liability or otherwise, even if such damages are foreseeable. The liability of the Company arising out of this Agreement or otherwise shall be limited to the amount paid or payable for Products under this Agreement. Notwithstanding anything to the contrary in this Agreement, neither party excludes or limits its liability in respect of death or personal injury caused by the negligence of that party, or liability for fraudulent misrepresentation or such other liability which cannot under applicable law be excluded or limited by agreement.
- Warranty Disclaimer. EXCEPT AS PROVIDED IN SECTION 11, THE COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS’ LIABILITY TO BUYER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE PRICE PAID BY BUYER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS ITS ESSENTIAL PURPOSE.
- Assignment. Buyer shall not assign this Agreement or any part thereof without the prior written consent of the Company. The Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective executors, administrators, successors and permitted assigns.
- Governing law and disputes. This Agreement shall be governed by the laws of California. Any and all disputes of whatever nature arising out of this Agreement referenced herein, and which are not resolved between the Parties themselves, shall be submitted to a competent court in Orange County California, even in the case of summary proceedings, third party claims, or if there is more than one defendant. The U.N. Convention on Contracts for the International Sale of Goods is excluded.
- Non-Waiver. No waiver by any Party of any breach by any other Party of any of its covenants, obligations and agreements hereunder shall be a waiver of any subsequent breach of any other covenant, obligation or agreement, nor shall any forbearance to seek a remedy for any breach be a waiver of any rights and remedies with respect to such or any subsequent breach.
- Non-waiver. No waiver by any Party of any breach by any other Party of any of its covenants, obligations and agreements hereunder shall be a waiver of any subsequent breach of any other covenant, obligation or agreement, nor shall any forbearance to seek a remedy for any breach be a waiver of any rights and remedies with respect to such or any subsequent breach.
- Unenforceability of Provisions. It is agreed that should any clause, condition, or term in any part thereof, contained in this Agreement be unenforceable or prohibited by law or by any present or future governmental legislation, then such clause, condition, term or part thereof, shall be amended, and is hereby amended, so as to be in compliance with the said legislation or law but, if such clause, condition or term, or part thereof cannot be amended so as to be in compliance with any such legislation or law then such clause, condition, term or part thereof is severable from this agreement, and all the rest of the clauses, terms and conditions or parts thereof contained in this agreement shall remain unimpaired.